[JPRT, 110th Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2007
=======================================================================
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 10, 2007
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
2007 ANNUAL REPORT
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38-026 PDF WASHINGTON DC: 2007
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2007
=======================================================================
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 10, 2007
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
SANDER M. LEVIN, Michigan, Chairman
MARCY KAPTUR, Ohio
TOM UDALL, New Mexico
MICHAEL M. HONDA, California
TIM WALZ, Minnesota
CHRISTOPHER H. SMITH, New Jersey
EDWARD R. ROYCE, California
DONALD A. MANZULLO, Illinois
JOSEPH R. PITTS, Pennsylvania
BYRON DORGAN, North Dakota, Co-
Chairman
MAX BAUCUS, Montana
CARL LEVIN, Michigan
DIANNE FEINSTEIN, California
SHERROD BROWN, Ohio
CHUCK HAGEL, Nebraska
SAM BROWNBACK, Kansas
GORDON H. SMITH, Oregon
MEL MARTINEZ, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
CHRISTOPHER R. HILL, Department of State
HOWARD M. RADZELY, Department of Labor
Douglas Grob, Staff Director
Murray Scot Tanner, Deputy Staff Director
(ii)
C O N T E N T S
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Page
Preface.......................................................... 1
General Overview................................................. 2
I. Executive Summary and Recommendations......................... 5
Findings and Recommendations by Substantive Area............. 5
Political Prisoner Database.................................. 31
II. Human Rights................................................. 33
Rights of Criminal Suspects and Defendants................... 33
Worker Rights................................................ 56
Freedom of Expression........................................ 73
Freedom of Religion.......................................... 90
Ethnic Minority Rights....................................... 105
Population Planning.......................................... 108
Freedom of Residence and Travel.............................. 111
Status of Women.............................................. 115
Human Trafficking............................................ 120
North Korean Refugees in China............................... 124
Health....................................................... 126
Environment.................................................. 134
III. Development of the Rule of Law.............................. 141
Civil Society................................................ 141
Institutions of Democratic Governance........................ 143
Access to Justice............................................ 148
Commercial Rule of Law....................................... 153
Impact of Emergencies: Food Safety, Product Quality, and
Climate Change............................................. 168
IV. Tibet: Special Focus for 2007................................ 182
V. Developments in Hong Kong..................................... 212
VI. Endnotes..................................................... 215
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2007 ANNUAL REPORT
Preface
As this report goes to press, Beijing is putting the
finishing touches on preparations for the opening of the
Chinese Communist Party's 17th Party Congress on October 15,
2007. The event will mark the completion of Hu Jintao's first
five-year term as Party General Secretary. China in the last
year also passed another important marker--the fifth year in
the implementation of its World Trade Organization (WTO)
commitments. The Commission passed a marker of its own, having
issued five previous Annual Reports on human rights and the
development of the rule of law in China.
This confluence of five-year markers provides a useful
opportunity to understand the course of human rights and the
rule of law in China. Hu Jintao ascended to the Party's top
leadership post five years ago advocating greater government
transparency, respect for law, protection of the environment,
and a more creative response to rising citizen activism. Over
the last five years, however, a different reality has unfolded.
China's human rights practices in the last year reflected
Chinese leaders' intolerance of citizen activism; suppression
of information on urgent matters of public concern (including
food safety, public health, and environmental emergencies); the
instrumental use of law for political purposes; and the
localization of dispute resolution as a method of insulating
the central government and Party from the backlash of national
policy failures. Whether or not the Chinese Communist Party's
17th Party Congress ultimately will be associated with change
instead of continuity on these issues remains to be seen.
The commitments that China made five years ago when
entering the WTO were not only important to its commercial
development in the international marketplace, but to the
development of the rule of law at home. These commitments
require that China ensure nondiscrimination in the
administration of trade-related measures and prompt publication
of all laws, regulations, judicial decisions, and
administrative rulings relating to trade. The required
improvements to China's domestic rule of law should have
assisted Chinese citizens in a wide range of areas from
property rights, environmental protection, government
transparency, and access to justice. Unfortunately, China has
not lived up to its international commitments, and the unfair
manner in which it competes in the global marketplace is
causing alarm in the United States and around the world. Its
instrumental use of legal reform for political purposes
threatens its domestic rule of law.
This report summarizes, with the detailed findings of each
section, previous Commission recommendations in order to
provide readers a sense of the challenges that remain in
leveraging improvements in China's human rights and rule of law
practices. In addition, this report demonstrates the importance
of the Commission's Political Prisoner Database, a unique and
powerful resource on which the Commission relies for its
advocacy and research work, including the preparation of this
Annual Report.
The next year will be an important one for China, as the
2008 Summer Olympic Games place Beijing front and center on the
world stage. Foreign correspondents and international
organizations are already concerned that China has not lived up
to its promises in important areas of human rights. The
Commission will focus attention on these issues in the coming
year, both before and after the Olympics.
General Overview
The Commission observed ongoing human rights abuses and
stalled development of the rule of law in China during 2006-
2007. The Commission also observed increased repression in the
Xinjiang Uighur Autonomous Region (XUAR) and Tibetan autonomous
areas of China, stepped-up harassment of legal advocates, and
increased restrictions on Chinese reporters. In addition,
across the areas the Commission monitors, the following general
themes emerged: (1) Chinese leaders' increasing intolerance of
citizen activism and greater suppression of information on
urgent matters of public concern (including food safety, public
health, and environmental emergencies); (2) the instrumental
use of law for political purposes; (3) the localization of
dispute resolution in order to insulate the center from the
backlash of national policy failures; and (4) the influence
that China's linkages with the rest of the world have had on
some aspects of its domestic rule of law and human rights
development.
intolerance of citizen activism
Chinese officials have paid particularly close attention in
the last year to civil society organizations. Central and local
officials not only tightened existing controls over many
citizen organizations, but also engaged in selective use of
rarely enforced laws to provide a legal justification for
shutting these organizations down. The influential China
Development Brief was closed down in 2007 after one of its
editors was accused of violating China's Statistics Law. As a
vice minister of the State Environmental Protection
Administration publicly criticized a dangerous algae bloom that
had fouled China's Lake Tai, Wu Lihong, an environmental
activist who was among the first to bring the lake's pollution
problems to the public's attention, languished in prison.
Official harassment of the family members of human rights
activists (including Rebiya Kadeer, Gao Zhisheng, Chen
Guangcheng, and Hua Huiqi) has continued. Chinese citizens who
have attempted to organize workers outside of the Party-
controlled All-China Federation of Trade Unions risk
imprisonment, and particularly high-profile labor activists
such as He Chaohui, Yao Fuxin, Wang Sen, and Hu Shigen remained
in prison in 2007, serving out sentences that ranged from 7 to
nearly 20 years. China's leaders rely on the disunity of
workers to drive the economic growth on which the Party has
staked its claim to supremacy. Notwithstanding the new Labor
Contract Law's collective contracting provisions (which do not,
in fact, provide for true collective bargaining, nor do they
grant workers the right to organize or to select their own
representatives), the Party views organized labor as it does
citizen activism on most matters of public concern: as a threat
to the Party's hold on power.
instrumental use of law for political purposes
An increasing number of provisions concerning national
unity, internal security, social order, and the promotion of a
``harmonious society'' crept into laws and regulations during
2006-2007, carving out for public officials an ever-widening
realm for official discretion. China's laws place a burden of
undefined risk on citizens. Unbounded legal discretion is
manifest in many ways, including the deliberate omission of
fundamental procedural protections (such as access to a lawyer
or a public trial) for those accused of state security crimes,
and the use of overbroad terms (such as ``endangering state
security,'' ``subversion,'' ``splittism,'' and ``disturbance of
public order,'' or the arbitrary criteria used to distinguish
between ``normal religious activities'' and illegal religious
practices). The Commission also noted several cases in the past
year in which the state criminalized political activists not by
charging them with state security and disturbance of public
order crimes, but by indicting them on offenses such as fraud,
extortion, tax evasion, or illegal border crossing. Most
Chinese citizens--those who refrain from unapproved political
and religious activities--enjoyed increased room to maneuver in
many aspects of daily life. The system provides for an
increasing number of legal protections across many areas, but
enforces them selectively. Against persons the Party deems to
pose a threat to its supremacy, officials wield the legal
system as a harsh, and deliberately unpredictable, weapon.
It is now less obvious than before that the rapid pace with
which China produces new legislation should be seen as a sign
of progress. China has permitted the efficiency of legislative
processes to become increasingly divorced from consistent and
effective implementation. As a result, the distinction between
the promulgation of law and the making of propaganda has become
blurred in some instances, placing the credibility of China's
legal and regulatory reforms at risk.
insulation of the central leadership from the backlash of policy
failure
Throughout 2007, China's top leaders increasingly have
encouraged the resolution of disputes through nonjudicial
channels at the grassroots level wherever possible, insulating
the central government from the backlash of national policy
failures. In a March 29 speech, Supreme People's Court
President Xiao Yang expressed concern over cases involving
``hot button problems that can give rise to mass group
administrative disputes.'' Xiao's call to resolve lawsuits
involving rural land confiscations and urban home evictions
through mediation rather than through administrative litigation
came less than a month after China's passage of its new
Property Law, one stated goal of which was to provide stronger
legal protections for property rights holders. Xiao also
spotlighted cases concerning ``enterprise restructuring, labor
and social security, and resource and environmental
protection.'' Party directives and State Council regulations
concerning the petitioning system (``letters and visits,'' or
xinfang) and administrative reconsideration system echoed the
emphasis on dispute resolution through nonjudicial channels, at
local levels wherever possible. A draft labor dispute
resolution law, if adopted, would shift the focus of Chinese
labor law to the nonjudicial, in-house resolution of labor
disputes. This across-the-board trend appears intended, at
least in part, to ensure that sensitive disputes do not enter
legal channels which lead to Beijing.
Billed as a policy of local empowerment and part of a
measured long-term strategy to induce grassroots legal
development, the localization of disputes actually insulates
the center from the backlash of national policy failures.
China's leaders remain suspicious of efforts to undo this
insulation. In February 2007, Luo Gan, a member of the Party
Politburo Standing Committee, warned legal officials not to be
swayed by ``enemy forces'' trying to use the legal system to
Westernize and divide China, and by internal forces that denied
the Party's leadership on legal matters. He reminded them that
the ``correct political position'' is to be consistent with the
Party.
rising stakes of legal reform in china
Among the most important developments of the last year is
the growing impact outside of China of its domestic problems of
implementation. China's increased engagement with the world
economy means that events within China have an increasing
influence on China's neighbors and trading partners. Weak or
ineffective implementation of law and policy directly impacted
China's international relations during 2007. A series of unsafe
exports underscored the ways a lack of government transparency
and weak legal institutions can have sudden and serious
consequences on distant shores. It became more evident than
ever during 2007 that the rest of the world has a stake in
improved governance in China.
Chinese and Western experts have taken note of China's use
of diplomatic leverage and, in particular, of the way Chinese
diplomacy in recent years has promoted a notion of national
sovereignty that supplies China's leaders with a theoretical
basis and rhetoric with which to resist international calls for
improvement in its domestic human rights.\1\ Even if they may
not all fall within the mandated scope of this Commission's
work as understood in keeping with past precedent, these
linkages form the backdrop against which some readers are
likely to engage this report. Policymakers in the United States
and elsewhere have found China's international actions
troubling--especially when they have included China's
opposition to, or withholding of support for, global efforts to
combat human rights atrocities or humanitarian abuses in other
parts of the world. China's new-found global reach affords it
an expanded array of levers through which to reward those
overseas who support or remain silent on its domestic human
rights abuses, while punishing those critical of these
practices. China's role in the UN's new Human Rights Council,
Uzbekistan's extradition of Canadian citizen Huseyin Celil to
China rather than allowing him to return home, some of China's
actions related to Sudan and Darfur, and China's campaign of
pre-Olympics surveillance and intimidation of nongovernmental
organization activists overseas may be understood, at least in
part, in this context.
Even as the Commission highlights these areas of concern,
China over the past year has issued a number of laws and
regulations which have the potential to produce positive
results if central and local government departments and Party
officials prove their ability and willingness to implement them
faithfully. Faced with popular anger over rampant corruption
and abuse of power, China's procuracy has issued broad-ranging
provisions, including, among others, July 2006 Provisions on
the Criteria for Filing Criminal Cases of Dereliction of Duty
Infringing Upon Rights, which directs procurators to prosecute
a lengthy list of crimes of official abuse, including cases of
torture and retaliation against petitioners. China in 2007
passed a long-awaited Labor Contract Law which, if fully
implemented, could provide greater regularity and procedural
protections in hiring, firing, workplace benefits, and safety.
The Labor Contract Law was passed amid widespread worker anger
over cases of unpaid wages. In April 2007, the State Council
issued the Regulation on the Public Disclosure of Government
Information, dubbed by some observers as China's first national
``freedom of information'' regulation. In order for this
regulation to play an effective role, however, the government
will have to clarify and limit the sphere of information
considered ``state secrets.'' Finally, in preparation for the
2008 Olympic Games, Chinese authorities adopted looser
restrictions on foreign journalists, and issued regulations on
the protection of the mentally ill, which could represent an
important first step away from the almost entirely arbitrary
police detention of the past.
I. Executive Summary and Recommendations
2006-2007
Findings and Recommendations by Substantive Area
A summary of findings for 2006-2007 follows below for each
area that the Commission monitors. The order of topics roughly
follows that set forth in the Commission's mandate. In each
area, the Commission has identified a set of specific issues
that merit attention over the next year, and submits
recommendations of proposed action to address each set of
issues to Members of the U.S. Congress and Administration
officials.
rights of criminal suspects and defendants
Chinese prisons in 2007 continue to hold individuals who
were sentenced for counterrevolutionary and other crimes that
no longer exist under the current Criminal Law. Shortly
preceding the annual session of the former UN Human Rights
Commission in 2005, Chinese central government officials
pledged to ``provide relief'' to those imprisoned for political
acts that were no longer crimes under the law. The reality is
that Chinese citizens remain susceptible to detention and
incarceration as punishment for political opposition to the
government, as well as for exercising or advocating human
rights.
Chinese law enforcement officers routinely detain
individuals without formal charge or judicial review. In some
instances, police hold individuals in custody for a few days
before ultimately releasing them, without any justification
other than a general desire to avoid protests and other
instances of ``social unrest'' that might undermine Party
governance. Citizens from localities all throughout China
travel to Beijing to voice their complaints before central
government offices, often congregating together in
``petitioners' villages'' on the city's outskirts. NGO and
media sources have reported that police officers conduct night
raids of these villages, sending petitioners to a special
holding location called ``Majialou'' pending their forced
repatriation home. According to Human Rights Watch, the
detentions of more than 700 individuals in advance of the
National People's Congress in March 2007 were ``widely seen as
a grand rehearsal in public order tactics for two even more
important upcoming events: the Communist Party's 17th Congress
in October 2007 and the Olympic Games in 2008.''
Since releasing China's Third Report on the Implementation
of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) in 2000, central
government leaders have repeatedly emphasized their ongoing
efforts to pass new laws and administrative regulations
preventing, punishing, and compensating cases of torture by
government officials. Despite international safeguards and
recent domestic reforms designed to help guard against torture
in China, ``persons acting in an official capacity who torture
and ill-treat others in violation of the [CAT] generally do so
with impunity.'' In November 2006, two senior officials from
the Supreme People's Procuratorate called on local
procuratorates to strengthen their supervision over criminal
investigations, and to bring into line police who extract
confessions through torture or who illegally gather evidence.
Chinese defendants remain vulnerable to official abuses and
faced mounting challenges to the defense of their legally
protected rights during the past two years, as lawyers in
general were increasingly called upon to contribute to the
Party's efforts to build a ``harmonious society.'' This new
role was first clarified in a 2006 guiding opinion by the All
China Lawyers Association (ACLA), which the Commission analyzed
as an effort to restrict and punish lawyers who choose to
handle collective cases without authorization. ACLA's guiding
opinion effectively calls on China's legal profession to
function in the interests of the Party and state, a demand that
conflicts with a lawyer's duty to his or her client in criminal
cases. It also calls into question ACLA's ability to operate as
a self-governing professional association that works in the
interests of Chinese lawyers, without external interference.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge China's leaders in written correspondence
and meetings that they ensure the prompt review of
cases in which an individual was charged with
counterrevolutionary crimes, including the cases of
political prisoners such as labor and democracy
activist Hu Shigen (originally sentenced to 20 years
for helping to establish an unauthorized political
party and trade union), and former Tibetan monk Jigme
Gyatso (now serving an extended 18-year sentence for
printing leaflets, distributing posters, and later
shouting pro-Dalai Lama slogans in prison).
Commissioners should urge the immediate release of
these and other prisoners who continue to be deprived
of their liberty for non-existent crimes.
Request in correspondence with the Chinese
Embassy that when arranging trips to China, the Embassy
should provide information about, and access to,
petitioners who travel to Beijing to voice their
grievances, to the ``petitioners' villages'' in which
many previously congregated, and to the special holding
location called ``Majialou'' where many are detained
pending forced repatriation home. It is advisable to
reiterate the desire to visit these places upon arrival
in China. Commissioners should also request in pre-trip
correspondence and in communicating with hosts on the
ground that there be meetings with officials from the
Ministries of Public Security and State Security to
discuss their concrete plans for maintaining order in
advance of the 2008 Beijing Summer Olympic Games.
Urge in written correspondence and meetings
with China's leaders that they revise the Lawyers Law
and Criminal Procedure Law to provide greater rights
and protections to lawyers. Support international
educational exchanges and training that seek to bring
public security, procuratorate, and court officials
together with Chinese legal professionals to discuss
the relationship between lawyers and law enforcement.
Commissioners should also request meetings with
officials from the Supreme People's Procuratorate and
local procuratorates. Such meetings provide a unique
opportunity to inquire about the number of reported
cases of ``tortured confession'' and the number of
officials actually prosecuted for this crime in recent
years.
worker rights
In 2006-2007, several high-profile incidents underscored
the inhumane conditions and weak protections for workers in
certain sectors of the Chinese economy. The discovery in 2007
of a massive network of small-scale brick kilns in Shanxi and
Hunan provinces employing kidnapped slave labor vividly
illustrated China's inability to consistently enforce
internationally recognized worker rights and to guarantee
workplace safety.
Against this backdrop, a major legislative development in
the area of worker rights occurred with passage on June 29,
2007, of a new Labor Contract Law, set to take effect January
1, 2008. The law outlines a set of nationwide minimum standards
for employment contracts. On its face, the law provides for
collective contracts, but it does not provide for true
collective bargaining, nor does it grant workers the right to
organize or the right to select their own representatives.
Among its stated aims are the promotion of longer-term
employment relationships, increased leverage for workers vis-a-
vis employers, and an expanded role for the Party-controlled
All-China Federation of Trade Unions, China's only recognized
union.
The law appears to trigger the creation of rights by
default in certain circumstances. If an employer fails to enter
into a written labor contract with an employee within one year
of starting employment, an open-ended employment contract is
deemed to exist by default. The law increases the range of
conditions under which severance pay to workers is required,
but it also specifies severance pay caps for high-wage workers,
apparently in order not to burden firms that depend on such
workers.
A principal cause for concern with the law is uncertainty--
the statutory text leaves much to interpretation and
clarification during implementation. Even on a point as
fundamental as its retroactive effect, the law is unclear.
While the law does not explicitly require employers and
employees to enter into new contracts when it takes effect on
January 1, 2008, neither does it say whether it will apply to
existing employment contracts that do not comply with the new
law.
The law requires ``consultation'' between employers and
trade unions on firm work rules, but says nothing about work
rules that apply by default during the period of consultation.
Employers must give the trade union prior notice before
initiating terminations, but no rules govern the union's
notification of workers. The law does not specify whether it
will apply to employees (whether local or expatriate) of
foreign company representative offices. Because so much has
been left to be fleshed out through the issuance of
supplemental regulations and interpretations during
implementation, the law's full impact will remain unclear for
some time.
Promulgation of the new Labor Contract Law does not imply
that labor disputes are now more likely than before to be
channeled into China's courts. Current law specifies that labor
disputes are to be handled by ``mediation, arbitration, and
trial,'' but a new draft Law on Labor Dispute Mediation and
Arbitration placed before the National People's Congress
Standing Committee (NPCSC) on August 26, 2007, if passed, would
change that by encouraging nonjudicial mediation. The draft
entitles companies to establish labor mediation committees in-
house ``so as to solve disputes at the grassroots level,''
according to the Vice Chair of the NPCSC's Legislative Affairs
Commission.
Taken as a whole, China's emerging national labor law
regime, billed as both strengthening worker rights and
grassroots dispute resolution, appears more intended to make
sure that disputes do not enter legal channels that lead to
Beijing. Whether this represents deliberate local empowerment
as part of a measured long-term strategy to induce grassroots
legal development, or a strategy of crisis localization and
insulation from the center, or some combination of both,
remains an open question.
The Chinese government has shown a willingness to engage in
technical exchanges and cooperative activities with the United
States, and to consider suggestions and recommendations on
labor law reform from U.S. experts and scholars. Cooperation
between the two countries is potentially significant with
respect to China's need for progress in the area of coal mine
safety and occupational safety. The Chinese government
participated in a U.S. Department of Labor-supported pilot
project on enterprise-based dispute resolution programs,
creating labor relations committees with elected worker
representatives.
The Commission notes that two Chinese government agencies,
the Ministry of Labor and Social Security (MOLSS) and the State
Administration of Work Safety (SAWS), have undertaken
cooperative projects and exchanges with the United States since
2002. The cooperation between the two countries has focused on
work safety, labor law reform, legal aid for workers, pension,
and dispute resolution in the workplace. This year, MOLSS and
SAWS signed or renewed six Letters of Understanding with the
U.S. Department of Labor to continue bilateral exchange and
cooperation.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge in meetings with Chinese officials that
China fully implement and strictly enforce its new
Labor Contract Law and, in forthcoming implementing
regulations and judicial interpretations, that it
provide all workers with an effective mechanism for
true collective bargaining and free union organizing.
Call upon the Chinese government to make
public the results of its investigation on the origins
and scale of the recent brick kiln slave labor scandal,
including information about the involvement of public
officials in protecting those kilns.
Press Chinese officials for answers about
working conditions, wage rates, overtime pay, and
underage labor at all enterprises throughout China, and
press for information on major violations to be
published openly.
freedom of expression
Recent international concern over the global health impacts
of food, drugs, consumer products, disease outbreaks, and
pollution originating from China underscore the importance of
the free flow of information in China. Public access to
government information, at least on paper, has improved, but
major obstacles to government transparency remain, reflecting
the Party's overarching concern that it maintain control over
the flow of information. In April 2007, China passed its first
national regulation requiring all government agencies to
release important information to the public in a timely manner,
but the regulation's impact may be limited by the presence of a
``state secrets'' exception that gives the government broad
latitude to withhold information from the public.
Perhaps the biggest obstacle, however, is the Party and
government's control over the press, which leads to incomplete
reporting on issues of public concern and increases
opportunities for public officials to hide or manipulate
information when they find it advantageous to do so. In June
2007, Chinese media initially reported in graphic detail on a
scandal involving the discovery of more than 1,000 forced
laborers, including scores of teenagers and the mentally ill,
working at brick kilns in the provinces of Shanxi and Hunan.
But authorities later instructed journalists to limit their
coverage and applaud the Party's rescue efforts, and warned
parents and lawyers for victims not to speak to the media.
Developments during 2007 suggest that the prospects for a
free press in China remain dim. While foreign reporters in
theory were granted some increased press freedom in accordance
with promises China made in 2001, as part of its successful bid
to host the 2008 Olympic Games, China continues to justify
increased restrictions on domestic media by asserting a public
interest in preserving order, stability, and control in the
period around the Party's 17th Congress in October 2007, and by
alleging corruption among Chinese reporters. Furthermore,
foreign journalists continue to report harassment by public
officials in China. Central government officials have urged
local officials to cooperate more with the media, but this
development should not be interpreted as a sign of increased
press freedom or openness.
The growing availability of the Internet and cell phones in
China has given citizens unprecedented opportunities to shape
public opinion and influence policy. In 2007, citizens used the
Internet and other communication technologies such as cell
phones with increasing success to raise public awareness, drive
the reporting agendas of the state-controlled press, and force
governments to respond to important social problems.
Their success, however, has not been the result of any
government policy of liberalization. Instead, the Party has
responded to this perceived threat to its supremacy over the
last five years by continuing to adapt regulations and
technical measures to maintain control over the Internet,
including requiring Web sites to be licensed, blocking access
to politically sensitive information on the Internet, and
detaining citizens who criticize the government online. This
past year, at least five writers and Internet essayists were
punished under the Article 105 ``subversion'' clause of the
Criminal Law for posting their criticism of the government and
Party on foreign Web sites.
Finally, the government continues to impose prior
restraints on publishing, preventing citizens from freely
expressing ideas and opinions in books and magazines. In
preparation for the Party's 17th Congress, publication and
propaganda officials announced a crackdown on ``illegal
publications'' and banned a number of books.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge Chinese officials at all levels that they
must stop blocking foreign news broadcasts and Web
sites, such as Voice of America, Radio Free Asia, and
the Commission's Web site. Formulate and promote
proposals that discourage China's Internet and media
censorship and favor online freedom. Chinese officials
must be made aware that the United States does not
block Chinese government broadcasts, news, or Web
sites.
Impress upon Chinese officials that their
interpretation of ``state secrets'' under Chinese law
does not meet international human rights standards
because it gives administrative officials unbounded
discretion to withhold information. Chinese officials
must be reminded that such discretion, which enables
officials to hide information about important events
such as health and environmental emergencies, threatens
the welfare of not only Chinese citizens but
individuals around the world.
Impress upon Chinese officials the urgency of
the need for them to live up to their commitment to
grant foreign journalists complete freedom to report in
China before and during the 2008 Olympic Games. To
date, China's fulfillment of this commitment has been
incomplete at best. Remind Chinese officials that their
continued failure to fulfill this commitment, by
allowing harassment and intimidation of foreign
journalists and the Chinese citizens they work with and
interview, violates both the promise they made in
connection with the Olympics and international human
rights standards for freedom of expression. Members of
the Congress and Administration officials are also
urged to press their Chinese counterparts to remove the
October 2008 expiration of this commitment and to grant
similar protections to domestic journalists, for which
this commitment does not apply.
Call on the Chinese government to release
political prisoners mentioned in this report who have
been punished for peaceful expression, along with other
prisoners included in the Commission's Political
Prisoner Database. Representative cases include:
freelance writer Yang Tongyan, who uses the pen name
Yang Tianshui (serving a 12-year sentence for
criticizing China's government online and attempting to
form a branch of the China Democracy Party); journalist
Shi Tao (serving a 10-year sentence for forwarding to
an overseas Web site instructions from propaganda
officials to the media); and writer Zhang Jianhong
(serving a 6-year sentence for criticizing China's
government online).
freedom of religion
In both law and practice, China failed in 2007 to provide
freedom of religion in accordance with international human
rights standards. China's Constitution, laws, and regulations
do not guarantee ``freedom of religion'' but only ``freedom of
religious belief.'' China's laws and regulations protect only
``normal religious activities'' and do not define this term in
a manner to provide citizens with meaningful protection for all
aspects of religious practice.
Religious communities must register with the government by
affiliating with one of five recognized religions, and they
must receive government approval to establish sites of worship.
The state tightly regulates the publication of religious texts
and forbids individuals from printing religious materials.
State-controlled religious associations hinder citizens'
interaction with foreign co-religionists, including their
ability to follow foreign religious leaders. The government
imposes additional restrictions on children's freedom of
religion. Chinese citizens who practice their faith outside of
officially sanctioned parameters risk harassment, detention,
and other abuses. In its 2007 report on religious freedom in
China, the U.S. Department of State noted past reports of abuse
and deaths of Falun Gong practitioners in custody.\2\
Party leaders manipulate religion for political ends. Like
his predecessor, President Hu Jintao has responded to an
increase in the number of religious followers through the use
of legal initiatives to cloak campaigns that tighten control
over religious communities. Despite official claims in 2004
that the Regulation on Religious Affairs (RRA) adopted that
year represented a ``paradigm shift'' in limiting state
intervention in citizens' religious practice, it codified at
the national level ongoing restrictions over officially
recognized religious communities and discriminatory barriers
against other groups.
Government harassment, repression, and persecution of
religious and spiritual adherents has increased during the
five-year period covered by this report. In 2004, the
Commission reported that repression of religious belief and
practice grew in severity. The Party strengthened its campaign
against organizations it designated as cults, targeting Falun
Gong in particular, but also unregistered Buddhist and
Christian groups, among other unregistered communities. The
Commission noted a more visible trend in harassment and
repression of unregistered Protestants for alleged cult
involvement, starting in mid-2006. The Commission reported an
increase in harassment against unregistered Catholics starting
in 2004 and an increase in pressure on registered clerics
beginning in 2005. The government's crackdown on religious
activity in the Xinjiang Uighur Autonomous Region (XUAR) has
increased in intensity since 2001. New central government legal
provisions and local measures from the Tibet Autonomous Region
government intensify an already repressive environment for the
practice of Tibetan Buddhism. Daoist and Buddhist communities
have been subject to ongoing efforts to close temples and
eliminate religious practices deemed superstitious, and have
also been made subject to tight regulation of temple finances.
Members of religious and spiritual communities outside the five
groups recognized by the government continue to operate without
legal protections and remain at risk of government harassment,
abuse, and in some cases, persecution.
Government harassment, repression, and persecution of
religious and spiritual adherents continued in the past year,
and worsened for some communities. In the past year, the
government continued its campaign of persecution against the
Falun Gong spiritual movement; issued measures that increase
repression of Tibetan Buddhism; maintained repressive policies
against Islamic practice in the XUAR; closed unregistered
Protestant house church gatherings and detained house church
leaders; continued to dictate the terms upon which Chinese
Catholics could recognize the authority of Catholic religious
institutions outside China and continued to detain, sequester,
and otherwise coerce clergy into complying with official
policies; and enforced campaigns to close unregistered Buddhist
and Daoist temples and purge both religions of practices deemed
as ``feudal superstitions.''
The government has continued harassment of legal advocates
who defend religious and spiritual practitioners. Authorities
also have continued campaigns to restrict ``illegal'' religious
publications, and continue to imprison religious adherents who
publish or distribute religious materials without permission.
Chinese officials have increased oversight of citizens'
contacts with foreign religious practitioners within China in
the run-up to the 2008 Olympic Games. In March 2007, Minister
of Public Security Zhou Yongkang said the government would
``strike hard'' against hostile forces inside and outside the
country, including religious and spiritual groups, to ensure a
``good social environment'' for the Olympics and 17th Communist
Party Congress.
The Commission has recommended in the past that the
President and Congress urge the Chinese government to allow
visits by the U.S. Commission on International Religious
Freedom (USCIRF) and the UN Special Rapporteur on Religious
Intolerance. The Commission notes that China has since hosted
USCIRF, and that discussions about a visit by the UN Special
Rapporteur on Religious Intolerance are reportedly in progress.
It commends the Chinese government for providing access to
international monitors, but it notes monitors have so far
encountered some restrictions on their activities within China.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge in direct meetings and written
communications with Chinese officials that they
guarantee, in both law and practice, freedom of
religion to all Chinese citizens, in accordance with
Article 18 of the Universal Declaration of Human
Rights. Stress that this freedom extends to Tibetan
Buddhists' right to express devotion to the Dalai Lama;
Catholics' right to recognize the religious authority
of the Holy See, free from Chinese government
interference; Muslims' right to make overseas
pilgrimages outside state-controlled channels that
dictate Party loyalty; Protestants' right to congregate
in house churches; Falun Gong practitioners' right to
exercise spiritual beliefs; and all citizens' right to
manifest their religious and spiritual beliefs free
from government control and threat of harassment and
other abuses. Also underscore the importance of
protecting children's right to practice religion and
receive religious education.
Use talks and written correspondence at all
levels to call on the Chinese government to release
religious prisoners (including followers of spiritual
movements) mentioned in this report, along with other
prisoners included in the Commission's Political
Prisoner Database. Cases of religious prisoners include
Tibetan monk Choeying Khedrub (sentenced to life
imprisonment for printing leaflets); Bishop Jia Zhiguo
(detained repeatedly over the course of decades, and
most recently in August 2007, for involvement in the
unregistered Catholic Church); Pastor Wang Zaiqing
(imprisoned for printing and distributing religious
materials); and Li Chang (imprisoned for demonstrating
in support of Falun Gong). Spotlight religious
prisoners in speeches, on Web sites, and in other
forums. Support funding for organizations that promote
legal defense efforts for Chinese citizens detained and
imprisoned for exercising their right to freedom of
religion.
Promote opportunities, both in the United
States and China, for dialogue between Chinese
officials and overseas religious leaders, including
members of religious communities not officially
recognized within China, to underscore to Chinese
officials the importance of religious tolerance.
Opportunities for dialogue include exchange programs
supported by the U.S. Department of State's
International Visitor Leadership Program and programs
sponsored by nongovernmental organizations. Urge China
to accept training programs that inform public
officials of ways to bring China's own laws and
policies into compliance with the Chinese government's
domestic and international obligations. Urge the
Chinese government to continue access to international
monitors without imposing restrictions on their ability
to fully investigate conditions for religious freedom
in China.
ethnic minority rights
The Chinese government recognizes and supports some aspects
of ethnic minority identity, but represses aspects of ethnic
minority rights deemed to challenge state authority, especially
in the Xinjiang Uighur Autonomous Region (XUAR), Inner Mongolia
Autonomous Region, and Tibet Autonomous Region and other
Tibetan autonomous areas. Overall conditions vary for members
of the 55 groups the Chinese government designates as minority
``nationalities'' or ``ethnicities'' (minzu), but all
communities face state controls in such spheres as governance,
language use, culture, and religion. The government provides
some protections in law and in practice for ethnic minority
rights, and allows for autonomous governments in regions with
ethnic minority populations.
The narrow parameters of the ethnic autonomy system and the
overriding dominance of the Communist Party, however, prevent
ethnic minorities from enjoying their rights in line with
international human rights standards. The central government
has increased support for development projects in ethnic
minority regions, but benefits to ethnic minority communities
have been limited. Although one new development program sets
concrete targets for improving economic and social conditions
among ethnic minorities, it couples potentially beneficial
reforms with measures designed to monitor and report on ethnic
relations and perceived threats to stability.
The Chinese government uses counterterrorism and other
policies as a pretext for suppressing ethnic minorities'
peaceful aspirations to exercise their rights. The government
has characterized some expressions of ethnic minority rights as
separatism or a threat to state security, and levied prison
sentences on some ethnic minority rights advocates.
The Chinese government has increased repression in the XUAR
since 2001, building off campaigns started in the 1990s to
squelch political viewpoints and expressions of ethnic identity
deemed threatening to state power. Rights abuses in the region
are far reaching and target multiple dimensions of Uighur
identity. In addition to ``strike hard'' measures, officials
also have enforced ``softer'' policies aimed at diluting
expressions of Uighur identity. In recent years, local
governments have intensified measures to reduce education in
ethnic minority languages and have instituted language
requirements that disadvantage ethnic minority teachers.
Authorities in the XUAR continue to imprison Uighurs engaged in
peaceful expressions of dissent and other nonviolent
activities.
Although the Chinese government granted political prisoner
Rebiya Kadeer early release on medical parole to the United
States in 2005, it has since launched a campaign of harassment
and abuse against her family members in the XUAR, in an
apparent strategy to punish Kadeer for her activism in exile.
In 2007, a XUAR court sentenced Kadeer's son, Ablikim
Abdureyim, to nine years in prison for ``instigating and
engaging in secessionist activities.'' A court imposed a seven-
year prison sentence and fine in 2006 on Kadeer's son, Alim.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Provide support for U.S. organizations that
can provide technical assistance to the Chinese
government in its efforts to draft and revise
legislation on ethnic minority rights. Such
organizations might include groups already engaged in
legal reform projects in China. A new Chinese
government program for ethnic minority development,
issued in 2007, promotes drafting legislation to
protect some aspects of ethnic minority rights,
providing one possible opportunity for increased
engagement in this area.
Urge the Chinese government to end the
practice of repressing the constitutionally protected
right to the freedom of speech by ethnic minorities in
China, such as Tibetans, Uighurs, and Mongols, and of
punishing or imprisoning individuals of such ethnic
minority groups by characterizing peaceful expression
and nonviolent action as ``splitting the country'' or
``endangering state security.'' Urge China's National
People's Congress and State Council to clarify within
their laws and regulations on state security the
distinction between violent terrorist behavior, and
nonviolent policy research and advocacy of ideas aimed
at expanding ethnic autonomy and rights, and provide
explicit legal protection for such research and
advocacy. Support funding for organizations that can
assist China in such legislative projects. Support
funding for organizations that promote human rights in
the XUAR. Because of restrictions on civil society
groups within the region, recipients of such funding
should include organizations that carry out their work
outside the region.
In talks and written correspondence, call on
China to release Chinese citizens imprisoned for
advocating ethnic minority rights, including prisoners
mentioned in this report and included in the
Commission's Political Prisoner Database. Such
prisoners include Uighur writer Nurmemet Yasin (serving
a 10-year sentence for writing a short story about a
caged pigeon); Mongol bookstore owner Hada (serving a
15-year sentence for peacefully advocating for ethnic
minority rights); and Tibetan schoolteacher Drolma Kyab
(serving a sentence of 10 years and 6 months for
authoring unpublished manuscripts on subjects such as
Tibetan history and People's Liberation Army forces in
Tibetan areas).
Express concern about the continued abuse and
imprisonment of Rebiya Kadeer's family members in the
XUAR, and call for the release of all political
prisoners in the region. Couple efforts to promote
Uighur rights within China with measures to protect
Uighur culture in diaspora. In particular, in light of
recent measures that reduce Uighur language instruction
within the XUAR, encourage and provide financial
support for organizations and projects that seek to
preserve Uighur language and literature in diaspora.
Such funding targets could include community language
schools that promote training in the Uighur language,
especially among Uighur children; literary journals
that publish works in Uighur; and library programs to
collect Uighur books published inside and outside China
and catalogue them by their Uighur-language titles,
rather than by the Mandarin-Chinese titles imposed on
Uighur books published within China.
population planning
China continues to implement population planning policies
that violate international human rights standards. These
policies impose government control over women's reproductive
lives, result in punitive actions against citizens not in
compliance with the population planning policies, and engender
additional abuses by officials who implement the policies at
local levels. In 2007, the Party and government leadership
reaffirmed its commitment to its population planning policies,
and continues to implement such actions as charging large
``social compensation fees'' to families that bear children
``out of plan.''
Violent abuses continue to be widespread, particularly when
local officials--whose promotions and incomes are connected to
performance on these policies--come under pressure from higher
level officials for failing to meet family planning targets. In
the spring of 2007, local officials in the Guangxi Zhuang
Autonomous Region sparked large-scale protests and riots in
response to violent and heavy-handed tactics that they used to
enforce population planning policies, an incident which
underscored the continued tendency of citizens to resist such
abuses. Throughout 2006-2007, public officials continued to
suppress citizen activists who used legal measures to spotlight
or fight illegal and coercive population planning enforcement.
The government has taken limited steps to address social
problems exacerbated by population planning policies, such as
imbalanced sex ratios and decreasing social support for China's
aging population. In 2006, the government announced that the
following year it would extend across China a pilot project to
provide financial support to rural parents with only one child
or two girls, once the parents have reached 60 years of age. At
the same time, according to some observers, imbalanced sex
ratios and a resulting shortage of marriage partners have
already contributed to, or will exacerbate in the future, the
problem of human trafficking. Sex ratios stand at roughly 118
male births to 100 female births, with higher rates in some
parts of the country and for second births. Demographers and
population experts consider a normal male-female birth ratio to
be between 103 to 107:100.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge Chinese officials promptly to release
Chen Guangcheng, imprisoned in Linyi city, Shandong
province, after exposing forced sterilizations, forced
abortions, beatings, and other abuses carried out by
Linyi population planning officials. Yinan county and
Linyi public security, procuratorate, and court
officials convicted and imprisoned Mr. Chen through a
process that deprived him of many of the procedural
protections afforded to him under Chinese law.
Impress upon China's leaders the importance of
promoting legal aid and training programs that help
citizens pursue compensation and other remedies against
the state for injury suffered as a result of official
abuse related to China's population planning policies.
Provisions in China's Law on State Compensation provide
for such remedies for citizens subject to abuse and
personal injury by administrative officials, including
population planning officials. Provide funding and
support for the development of programs and
international cooperation in this area.
Urge the Chinese government to dismantle its
system of population controls, while funding programs
that inform Chinese officials of the importance of
respecting citizens' diverse beliefs.
freedom of residence and travel
The Chinese government still restricts freedom of residence
through the household registration (hukou) system it first
enacted in the 1950s. This system limits the right of Chinese
citizens to determine their permanent place of residence.
Regulations and policies that condition legal rights and access
to social services on residency status have resulted in
discrimination against rural hukou holders who migrate for work
to urban areas. The hukou system exacerbates barriers that
migrant workers and their families face in areas such as
employment, healthcare, property rights, legal compensation,
and schooling. The government's restrictions on residence, and
discrimination in equal treatment, contravene international
human rights standards.
Under President Hu Jintao and Premier Wen Jiabao, the
government has attempted to adapt this system to challenges
created by the massive job-seeking migrant population spawned
by economic reforms. In 2007, the Ministry of Public Security
formulated a series of proposals to submit to the State Council
for approval. Major reforms in the proposal include improving
the temporary residence permit system, improving the ability of
migrants' spouses and parents to transfer hukou to urban areas,
and using the existence of a fixed and legal place of residence
as the primary basis for obtaining registration in a city of
residence. Uneven implementation of hukou reform at the local
level has dulled the impact of national calls for change.
The Chinese government continues to enforce restrictions on
citizens' right to travel, in violation of international human
rights standards. The Chinese government uses restrictions on
international travel to punish activists and control religious
communities. In addition, Western academics, NGOs, and even
Commission staff and Members have been restricted in their
ability to travel to China. The Passport Law, effective January
2007, articulates some beneficial features for passport
applicants, but permits officials to refuse a passport where
``the competent organs of the State Council believe that [the
applicant's] leaving China will do harm to the state security
or result in serious losses to the benefits of the state.'' In
August, Shanghai authorities denied the passport applications
of rights defense lawyer and former political prisoner Zheng
Enchong and his spouse, Jiang Meili. The same month,
authorities in Beijing prevented Yuan Weijing, spouse of
imprisoned rights activist Chen Guangcheng, from traveling
overseas to accept an award on behalf of her husband. House
church leader Zhang Rongliang, who resorted to obtaining
illegal travel documents after the government refused to issue
him a passport, was sentenced to seven and one half years'
imprisonment in 2006 on charges of illegally crossing the
border and fraudulently obtaining a passport. Also in 2006,
authorities detained two leaders of the unregistered Wenzhou
diocese, Peter Shao Zhumin and Paul Jiang Surang (who is also
known by the name Jiang Sunian), after they returned from a
pilgrimage to Rome. Authorities later handed down prison
sentences of 9 and 11 months, respectively, alleging they had
falsified passports and charging them with illegal exit from
the country.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Raise the issue of restrictions on travel, and
the cases of Zhang Rongliang, Zheng Enchong, Jiang
Meili, and Yuan Weijing (mentioned above) in all levels
of talks with Chinese officials. Such dialogue might be
integrated into broader discussions on the promotion of
citizen activism and of religious freedom.
Urge the Chinese government to undertake the
following measures, in line with recommendations the
Commission made to the Chinese government in its 2005
Issue Paper titled ``China's Household Registration
System:'' eliminate hukou restrictions that contravene
domestic and international law and institute measures
to equalize citizens' ability to change their
residence; eliminate outstanding rules that link hukou
status to access to public services like healthcare and
education; support private efforts to provide social
services to migrants; and engage in international
dialogue on migration and hukou reform to develop
effective models for China's reform efforts.
Provide funding for organizations that can
lend legal training and support for the reform efforts
outlined above.
status of women
Discrimination against women remains widespread in Chinese
society, as equal access to justice has been slow to develop,
and coercive population planning policies remain in place in
violation of internationally recognized human rights. There is
a lack of awareness among Chinese women of legal options when
their rights are violated, in spite of efforts by Chinese
officials and women's organizations to build protections for
women into law. This is especially true of migrant women, women
in impoverished rural areas, and women who are members of
ethnic minorities. Moreover, a lack of reliable, publicly
available statistical information and other data that are
disaggregated by sex and region hinder efforts by Chinese
women's rights activists and women's organizations to more
accurately assess the current problems women face and
accurately gauge how effectively laws and Party and government
policies are being implemented.
Within the past year, provincial and municipal governments
continued to pass regulations to strengthen the implementation
of the Law on the Protection of Women's Rights and Interests
(LPWRI), which the National People's Congress Standing
Committee amended in August 2005. The LPWRI prohibited sexual
harassment and domestic violence, and required government
entities at all levels to give women assistance to assert their
rights in court. In addition, the Ministry of Public Security
and All-China Women's Federation, among others, issued
guidelines in 2007 that will legally obligate police officers
to respond immediately to domestic violence calls and to assist
domestic violence survivors, or face punishment.
Women's organizations have been particularly active in the
last few years, although these groups advocate on behalf of
women's rights within the confines of government and Party
policy. In the past year, these women's organizations, lawyers
associations, and universities organized seminars and workshops
to raise awareness of women's issues among lawyers, judges,
public officials, and academics.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
In talks and in correspondence at all levels
call on Chinese officials to encourage further creation
of comprehensive social services for women, including
literacy programs that focus on combating illiteracy
among women, longer-term options for sheltering
domestic violence survivors, and psychological
counseling and suicide prevention programs, especially
in rural areas. Urge Chinese counterparts to support
initiatives that help raise public awareness of women's
issues and rights, especially as they affect migrant
women, women from rural communities, and ethnic
minority women.
Fund nongovernmental organizations that
provide training to independent Chinese organizations
that train legal officials and social service providers
in women's issues and rights, and that strengthen
collection and publication of data on issues affecting
women.
Encourage bilateral education and exchange
programs, such as exchanges between sister-city police
officers, judges, and other social service providers
that work on cases of domestic violence and other
issues affecting women.
human trafficking
The National People's Congress Standing Committee revised
the Law on the Protection of Minors on December 29, 2006, which
took effect on June 1, 2007. Article 41 of the revised law
contains new provisions that prohibit the trafficking,
kidnapping, and maltreatment, including sexual exploitation, of
minors. In July 2007, the All-China Women's Federation (ACWF)
and the Ministry of Public Security (MPS) held the first
National Anti-Trafficking Children's Forum, in which an MPS
spokesperson noted the increase in the number of cases of
forced labor trafficking and trafficking for commercial sexual
exploitation, and an annual decrease in the number of cases
that the MPS handled that relate to the trafficking of women
and children for marriage and adoption. According to the MPS
spokesperson, ``In trafficking and abduction aspects, China's
legal protection is underdeveloped, and it needs to be further
strengthened.'' Domestic rather than cross-border trafficking
remains the most significant part of the problem in China.
Women and children, who make up most cases, are trafficked from
poorer provinces to more prosperous provinces. Metrics used to
assess the extent of the problem in cross-border contexts may
not adequately capture the full extent of human trafficking in
China.
Recommendations
To address this issue, Members of the Congress and
Administration officials are encouraged to:
Under the Trafficking Victims Protection
Reauthorization Act of 2005 (Public Law 109-164),
authorize and appropriate funding to staff the Office
to Monitor and Combat Trafficking within the U.S.
Department of State with additional personnel who
possess appropriate expertise in China's unique
situation, in which the majority of trafficking in
persons remains domestic. Strengthen bilateral
exchanges, such as the China-U.S. Global Issues Forum,
and fund programs through the Department of State and
other U.S. government agencies that promote
international cooperation and address incidences of
domestic and cross-border trafficking of persons in
China, as provided for under the 2005 Act. Fund public
education and exchange programs in China, such as the
training of judges and court personnel, and assistance
in the investigation and prosecution of traffickers, as
provided for under the 2005 Act.
Urge the Chinese government to ratify the
Trafficking in Persons Protocol under the UN Convention
Against Transnational Organized Crime, and to adopt and
implement its anti-trafficking National Plan of Action.
Use meetings with Chinese officials to encourage the
implementation of best practices in investigation and
prosecution, such as more comprehensive victim
rehabilitation services and greater cross-
jurisdictional cooperation among legal and
administrative departments to combat forced labor
trafficking and to share information about victims and
prosecution efforts, including systematic
identification of Chinese citizens that distinguishes
victims of international trafficking from those who
traveled abroad illegally. Urge Chinese officials to
use the media to raise citizen awareness of issues
related to human trafficking, such as the role that
corruption plays in facilitating trafficking, efforts
by law enforcement officials to prosecute trafficking
cases, how courts handle trafficking and forced labor
cases, and the plight of trafficking victims and
survivors.
It has been reported that the severe imbalance
in the male-female sex ratio created by China's
population planning policies has the potential to
severely exacerbate the trafficking of women from
countries such as Laos, Vietnam, and North Korea, and
the internal trafficking of Chinese women, for sale as
brides. Members of the Congress and Administration
officials are encouraged to fund needed research on
this extremely serious set of problems, especially as
they pertain to the trafficking of women and children
for marriage, adoption, and commercial sexual
exploitation.
north korean refugees in china
The Chinese government forcibly repatriates North Korean
refugees found on Chinese soil. Because China does not classify
North Korean migrants as refugees, the Chinese government
denies the UN High Commissioner for Refugees (UNHCR) access to
this vulnerable population. North Korean refugees deported from
China to the Democratic People's Republic of Korea face
punishment ranging from detention in labor camps to long
imprisonment to execution. Women are among the most vulnerable
of the North Korean refugees in China, at risk of exploitation
and abuse at the hands of human traffickers. The Commission
notes numerous reports by international humanitarian workers in
the region that during the past one to two years, the Chinese
government has intensified its efforts to forcibly repatriate
North Korean refugees, in part as a security preparation for
the 2008 Olympic Games.
Recommendations
To address this issue, Members of the Congress and
Administration officials are encouraged to:
Use meetings and communications with Chinese
officials to urge them to honor their obligations under
the 1951 UN Convention Relating to the Status of
Refugees and its 1967 Protocol by halting the forced
repatriation of refugees, and terminating the practice
of automatically classifying all undocumented North
Korean border crossers as illegal economic migrants.
Press these officials to allow the UNHCR
unfettered access to this vulnerable refugee
population. Encourage them, as part of China's ongoing
effort to draft national refugee regulations, to
include provisions that establish formal and
transparent procedures for the review of North Korean
claims to refugee status.
health
During 2007, healthcare system reform focused on systems to
reduce risks and irregularities in healthcare delivery. In July
2007, Premier Wen Jiabao announced plans to provide a national
health insurance plan for all urban residents, including
children, the elderly, and the uninsured, with the aim of
increasing the number of insured urban residents by 200
million. The central government has selected 79 cities to
launch pilot programs by the end of September 2007.
While central government officials have emphasized the
importance of combating HIV/AIDS, implementation remains highly
problematic. A government advisor on AIDS policy has expressed
concern that China's efforts to combat the disease have stalled
and that funding, which in 2006 was 3 billion yuan (US$388
million), remains inadequate. At the local level, an
overburdened, underfunded healthcare system makes it difficult
for governments to provide the necessary prevention and
treatment programs. It is not uncommon for persons living with
HIV/AIDS and their advocates to report harassment by local
officials. In 2007, the government announced plans to spend 960
million yuan (US$127 million) on pharmaceuticals, education,
and efforts to reach out to the nation's homosexual community.
The Commission will monitor the implementation and results of
these plans in the coming months.
Discrimination against carriers of the hepatitis B virus
(HBV) remains widespread. Employer screening for HBV remains
common, especially in cities. Roughly half of a general
population sample surveyed said that they were not willing to
work with an HBV carrier, and over half said that they would
not hire one. State control of information relating to
infectious diseases hampers effective public health policy and
management. Regulations categorize as ``state secrets''
information on large-scale epidemics. A new Beijing municipal
regulation contains procedural protections for mentally ill
patients hospitalized involuntarily, but concerns about forced
commitment of the mentally ill in the period leading up to the
2008 Olympic Games remain.
Recommendation
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Call for an end to the harassment of HIV/AIDS
activists listed in the Commission's Political Prisoner
Database, such as Gao Yaojie, Wan Yanhai, and Hu Jia.
Call on China to ease restrictions on civil society
groups and provide more support to organizations that
address HIV/AIDS issues. Encourage Chinese officials to
make prevention and sensitivity training a requirement
for local officials. Encourage Chinese officials to
focus attention on the effective implementation of
prohibitions on discrimination against persons living
with HIV/AIDS and HBV in hiring and in the workplace.
Urge public officials to develop and fund training
programs to raise awareness among social service
providers, public officials, and educators of HBV and
other infectious disease-related discrimination in the
workplace, schools, and other community organizations.
environment
China's leaders acknowledge the severity of their country's
environmental problems, and the Chinese government has taken
steps to curb pollution and environmental degradation. For
example, the central government has developed an expansive
framework of environmental laws and regulations to combat
environmental problems. Nonetheless, effective implementation
remains systemically hampered by noncompliance at the local
level and administrative structures that prioritize the
suppression of ``social unrest'' and the generation of revenue
over environmental protection.
Just as China's environmental policies have not kept pace
with the country's severe environmental degradation, neither
have they kept pace with citizens' aspirations for a vigorous
expression of concern over environmental health and human
rights. During 2007, China's citizens confronted environmental
public policy with an increasing propensity not only to voice
intense dismay with government and industry, but also to turn
to petitions and mass protests, and to some extent the courts,
in order to pressure public officials for greater environmental
accountability, enforcement, and protection.
Rural residents and middle-class urban residents have
increased their participation in environmental activism in the
last two to three years. Official responses to environment-
related citizen activism have included crackdowns on the free
flow of information, and the suppression of citizen complaints
and protest. In part because these crackdowns and suppressions
target potential social allies instead of engaging them,
further environmental degradation may impel China's leaders to
acknowledge that these strategies can diminish their capacity
to exercise effective environmental leadership over the long
run.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Impress upon Chinese officials the urgency
with which they must combat the lure of revenue
generation over environmental protection, especially at
the local level, by urging China to endorse an
incentives system for local-level officials to adhere
to and enforce environmental laws and regulations.
Emphasize in speeches, on Member Web sites, and in
other fora the importance of effective local-level
implementation of environmental protection measures in
China.
Request meetings with officials from China's
State Environmental Protection Administration,
provincial environmental protection bureaus, and
experts from government, academic, and nongovernmental
environmental think tanks when arranging travel to
China. Endorse the efforts of officials who seek to
implement sound environmental policy by advocating for
improved disclosure and dissemination of pollution
data. Support programs that provide training for
Chinese officials in the conduct of environmental
impact hearings open to the public. Support training
programs in China aimed at increasing the integrity and
precision of environmental data collection methods, and
improving administration of public information
disclosure and dissemination concerning environmental
hazards and emergencies. Encourage constituents with
expertise and experience in successful public-private
environmental partnerships to build relationships with
provincial and city-level counterparts in China.
Call attention to China's practice of
censoring and penalizing citizens who request access
to, and disseminate, information relating to
environmental hazards and emergencies. Call on Chinese
officials to release and end harassment of
environmental activists mentioned in this report, such
as Wu Lihong and Tan Kai, and other environmental
activists included in the Commission's Political
Prisoner Database.
civil society
Chinese officials have expressed particular concern in the
last year over the influence that civil society organizations
have on the course of political development in China. Central
and local officials not only tightened existing controls over
many of these organizations, but also engaged in the selective
use of laws to provide a legal pretext for shutting them down.
In a widely publicized example, the influential nongovernmental
organization (NGO) publication, China Development Brief, was
closed down in 2007 in part because it was accused of violating
China's Statistics Law.
In March, the Ministry of Civil Affairs announced that
revisions to the key 1998 regulations on managing social
organizations were under consideration. The revisions
reportedly would for the first time permit international
organizations operating in China to register with the
government. At the same time, however, they would also retain
one of the government's key mechanisms for political control
over civil society organizations--the requirement that each
organization obtain the formal sponsorship of a Party or
government organization.
The government recently has initiated potentially
beneficial reforms affecting two types of civil society
organizations: rural farmers' cooperatives and charitable
groups. The Chinese government has created space for NGO
participation in delivering certain services, such as poverty
relief.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Use contacts with Chinese officials to call
for concrete measures that can help ease conditions for
civil society, including removal of the legal
requirement that all civil society organizations obtain
a Party or government sponsor organization and the
easing of restrictions on contact between Chinese and
foreign NGOs.
In talks and written correspondence at all
levels, call on the Chinese government to release
Chinese citizens imprisoned for forming and
participating in independent civil society
organizations, including prisoners mentioned in this
report and included in the Commission's Political
Prisoner Database. Such prisoners include Yang Tongyan
(also known as Yang Tianshui, sentenced to 12 years in
prison on subversion charges, for criticizing the
government online and attempting to form a branch of
the China Democracy Party).
access to justice
The Party continues to use the courts and the legal system
instrumentally to further its political objectives. In January
2007, the Supreme People's Court issued several opinions
calling on courts to insist on the Party's leadership. These
opinions outlined in detail how lower courts should handle
cases in order to promote the Party's ``harmonious society.''
In February 2007, Luo Gan, a member of the Party Politburo
Standing Committee, warned legal officials not to be swayed by
``enemy forces'' trying to use the legal system to Westernize
and divide China, and internal forces that denied the Party's
leadership on legal matters.
In March 2007, the President of China's Supreme People's
Court urged local judicial officials to make greater use of
mediation and other alternative methods of dispute resolution
in dealing with cases that touch on issues that could spark
public protest. ``(R)ural land seizures, urban home evictions
and demolitions, enterprise restructuring, labor and social
security, and resource and environmental protection'' cases
were among the issues singled out. Courts have been urged to
increase the proportion of cases handled through mediation.
Officials continued to implement the State Council's January
2005 regulation on the proper handling of citizen petitions,
which forces dispute resolution at local levels, implicitly
making it more difficult for citizens to take appeals to
provincial and central levels.
In early 2006, the All China Lawyers Association (ACLA)
issued a ``guiding opinion'' restricting the ability of lawyers
to handle cases involving representative or joint litigation by
10 or more litigants, or cases involving both litigation and
non-litigation efforts. The guiding opinion further instructed
law firms to assign only ``politically qualified'' lawyers to
conduct the initial intake of these cases, and lawyers handling
collective cases to attempt to mitigate conflict and propose
mediation as the method for conflict resolution. Renowned
lawyer Zhang Sizhi, former ACLA president, criticized the
guiding opinion as retrogressive and warned that it would set
the country's legal profession back several decades to the
1980s.
Recommendation
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge China to examine and take steps to ensure
that the finality of the formal judicial process is not
undermined by alternative channels for dispute
resolution. Use meetings with Chinese officials to
inquire about China's steps to reform its judicial
personnel and budgetary systems, in order to make local
courts and judges less beholden to local Communist
Party committees and governments.
institutions of democratic governance
The Ministry of Civil Affairs reported in July 2007 that
villages in all of China's 31 provincial-level jurisdictions
had held at least two rounds of elections since 1998, when the
Organic Law of the Village Committees took effect. In 2006-
2007, official Chinese reports suggested that ``corrupt'' and
``illegal'' election practices, including ``vote-rigging'' and
``rampant'' bribery, remain widespread, and that there is
reason to infer they are getting worse, despite numerous Party
and government directives calling for a cleanup.
In 2006-2007, citizens took to the streets in some areas to
protest vote-rigging and other electoral abuses. International
nongovernmental organization (NGO) monitors, who have been
involved in promoting and monitoring these village elections
since their inception, have reported that in the past two
years, Chinese officials in many localities have increasingly
resisted permitting either Chinese or foreign observers to
monitor the quality, procedural integrity, and fairness of
village elections. The powers of village committees and their
elected leaders by law are highly circumscribed by appointed
village Party secretaries.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Call on Chinese officials to make elections
more transparent by directing each province and
locality to openly publish on Web sites and other media
outlets detailed electoral information on all village
committee and residents committee elections, including
advance information on candidate nomination meetings,
candidate names, election dates and locations, plus the
total number and percentage of the vote each candidate
received.
Strongly urge Chinese officials to revive and
expand engagement with international NGOs specializing
in election monitoring.
commercial rule of law
Deficiencies in legal institutions and systems of policy
implementation have prompted a number of World Trade
Organization (WTO) challenges, including challenges to China's
intellectual property rights (IPR) enforcement regime and its
provision of subsidies to domestic industry in direct
contravention of its WTO obligations. China has shown little
progress in correcting deficiencies that have prompted these
cases and continues to engage in practices that deviate from
WTO national treatment principles.
China's long-protected banking and oil sectors were opened
in accordance with WTO commitments that came due on December
11, 2006. The opening of oil markets ends a longstanding state
monopoly, but concerns about national treatment remain. New
measures establish licensing schemes that may maintain some
barriers to entry by new market participants without further
regulatory loosening or relaxation of licensing requirements.
New banking sector regulations impose stringent compliance
and risk management duties on both corporate Boards of
Directors and Boards of Supervisors. It is unclear how the
rules will be implemented and enforced with respect to
institutions, such as many foreign banks, that do not have both
a Board of Directors and a Board of Supervisors. A new Anti-
Money Laundering Law, as well as new Bankruptcy, Anti-Monopoly,
and Enterprise Tax Laws will have broad impact in and beyond
the banking sector.
In the area of transparency, developments include China's
solicitation of comments on landmark legislation and
regulations that came into effect in 2007 (including the new
Labor Contract Law and Tax Law Implementation Regulations).
Comment procedures afford interested parties some limited
opportunities to offer input during legislative and regulatory
development. The State Council's issuance of a landmark
Regulation on the Public Disclosure of Government Information
in April 2007, to take effect in May 2008, is potentially
significant. Also potentially significant is the issuance by
the Supreme People's Court (SPC) and Supreme People's
Procuratorate (SPP) of measures concerning the publication of
judicial decisions and other documents.
The SPC issued an interpretation in 2007 concerning China's
Law Against Unfair Competition, an important development for
judicial reform generally speaking, with possible implications
for IPR. China ratified World Intellectual Property
Organization (WIPO) Copyright and WIPO Performances and
Phonograms Treaties in June 2007. The SPC and SPP jointly
issued an interpretation in April 2007 to clarify the
application of several criminal law provisions in IPR cases.
Thresholds for applying Criminal Law provisions in IPR cases
contained in the interpretation, though higher than before,
still permit some commercial-scale infringement to elude
criminal sanctions.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Urge Chinese officials to close the remaining
loopholes contained in its April 2007 SPC-SPP joint
interpretation on criminal sanctions and thresholds in
IPR cases.
As a general matter, express concern to
Chinese counterparts about China's implementation of
new laws and regulations. While some new laws and
regulations may be welcome, they should not be seen as
a sign of progress unless coupled with consistent,
transparent, and effective implementation that meets
international standards. Failure to do so risks
reducing even good law with the best intentions to mere
propaganda, and diminishes the credibility of China's
commitment to reform and the integrity of China's legal
and regulatory institutions.
impact of emergencies
The context of China's domestic rule of law development
changed during 2006-2007, with a sharp rise in domestic and
international concerns over food safety, product quality, and
climate change. These concerns, and China's response to them,
will both shape and be shaped by China's rule of law reforms.
Because their impact on the course of rule of law in China is
expected to be large, these developments are covered in added
detail in the main body of this report.
Food Safety and Product Quality
The central government has taken steps to address recent
concerns, but inadequate and inconsistent implementation,
corruption, and the lack of regulatory incentives hinder
effective regulation. The lack of strong national consumer
laws, consumer associations, and other civil society groups,
and public officials' ongoing harassment of individuals who
report issues relating to consumer safety, represent additional
challenges in ensuring consumer safety.
The State Council publicly released its national 11th Five-
Year Plan on Food and Drug Safety (2006-2010) on June 5, 2007.
The plan calls for the implementation of strict controls to
prevent farmers and producers from overusing pesticides and
additives, to publish online lists of blacklisted food
exporters and restrict their ability to export, to strengthen
investigations of major food safety incidents, to upgrade
standards, and to severely punish offenders. In addition, the
General Administration on Quality Supervision, Inspection and
Quarantine announced plans to implement the first national
recall system by the end of 2007.
Recommendation
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Use meetings and written communications with
Chinese officials to underscore how strongly American
consumers desire that China reform and strengthen its
enforcement system for drug, food, and consumer product
safety. Stress the indispensability of organized
citizen involvement in making drug and product safety
effective, and continue developing and funding Sino-
U.S. exchanges aimed at strengthening quality and
safety programs. Emphasize the importance of the free
flow of information and citizen participation in an
effective response to emergencies. Urge an end to the
suppression of information during emergencies, and to
the practice of penalizing those who wish to access
information. Take additional, concrete steps, which
might include adding product safety criteria to local
officials' performance evaluations, enhancing the
capacity and independence of enforcement personnel, and
including enhanced whistleblower protection in new
legislation and legislation currently under revision.
Climate Change
Government publications in 2007 indicate central government
concern with the issue of climate change, but the effectiveness
of central government policies to address climate change
remains to be seen. China issued its first National Assessment
Report on Climate Change in December 2006, and a five-year
General Work Plan for Energy Conservation and Pollutant
Discharge Reduction on June 4, 2007. The latter establishes
regional climate change administrations for coordinating
interagency work on climate change, energy efficiency, and
renewable energy. The Chinese government does not appear likely
to accept a mandatory reduction in its greenhouse gas
emissions.
Recommendation
To address this issue, Members of the Congress and
Administration officials are encouraged to:
Use contacts with Chinese officials to
continue promoting new areas of cooperation and new
opportunities for pollution-control and environmental
protection technology transfer, and the promotion of
renewable energy use. Continue developing and funding
educational exchanges with China regarding
environmental governance and climate change.
tibet
No progress in the dialogue between China and the Dalai
Lama or his representatives is evident. After the Dalai Lama's
Special Envoy returned to India after the sixth round of
dialogue, he issued the briefest and least optimistic statement
to date. Chinese officials showed no sign that they recognize
the potential benefits of inviting the Dalai Lama to visit
China so that they can meet with him directly.
Chinese government enforcement of Party policy on religion
resulted in an increased level of repression of the freedom of
religion for Tibetan Buddhists during the past year. The
Communist Party intensified its long-running anti-Dalai Lama
campaign. Tibetan Buddhism in the Tibet Autonomous Region (TAR)
is coming under increased pressure as recent legal measures
expand and deepen government control over Buddhist monasteries,
nunneries, monks, nuns, and reincarnated lamas. The Chinese
government issued legal measures that, if fully implemented,
will establish government control over the process of
identifying and educating reincarnated Tibetan Buddhist
teachers throughout China.
Chinese authorities continue to detain and imprison
Tibetans for peaceful expression and nonviolent action,
charging them with crimes such as ``splittism,'' and claiming
that their behavior ``endangers state security.'' The
Commission's Political Prisoner Database listed 100 known cases
of current Tibetan political detention or imprisonment as of
September 2007, a figure that is likely to be lower than the
actual number of Tibetan political prisoners. Based on sentence
information available for 64 of the current prisoners, the
average sentence length is 11 years and 2 months. Tibetan
Buddhist monks and nuns make up a separate set of 64 of the
known currently detained or imprisoned Tibetan political
prisoners as of September 2007, according to data available in
the Commission's Political Prisoner Database. Based on data
available for 42 currently imprisoned Tibetan monks and nuns,
their average sentence length is 10 years and 4 months. (It is
a coincidence that the number of monks and nuns, and the number
of prisoners for whom the Commission has sentence information
available, are both 64).
In its first year of operation, the Qinghai-Tibet railway
carried 1.5 million passengers into the TAR, of whom hundreds
of thousands are likely to be ethnic Han and other non-Tibetans
seeking jobs and economic opportunities. The government is
establishing greater control over the Tibetan rural population
by implementing programs that will bring to an end the
traditional lifestyle of the Tibetan nomadic herder by settling
them in fixed communities, and reconstructing or relocating
farm villages.
Recommendations
To address these issues, Members of the Congress and
Administration officials are encouraged to:
Continue to convey to the Chinese government
the importance and urgency of moving forward in
dialogue with the Dalai Lama or his representatives.
The most effective way for the dialogue to move forward
is for Chinese government officials to invite the Dalai
Lama to visit China and meet with him face-to-face so
that the Chinese and Tibetans can begin to overcome
obstacles to progress in the dialogue, and seek an
understanding that will contribute to the protection
and preservation of the Tibetan culture and heritage,
and improve China's stability, prosperity, and harmony.
Convey to the Chinese government the
importance of respecting the Tibetan people's right to
freedom of religion, and of not using the law as an
instrument to deprive Tibetans and other Chinese
citizens of that right. Freedom of religion includes
the right of Tibetan Buddhists to identify and educate
their religious teachers in a manner consistent with
their preferences and traditions, without regulation
and supervision by the Chinese government. Continue to
urge the Chinese government to allow international
observers to visit Gedun Choekyi Nyima, the Panchen
Lama as recognized by the Dalai Lama, and his parents.
Increase funding for U.S. nongovernmental
organizations to develop programs that can assist
Tibetans to increase their capacity to protect and
develop their culture, language, and heritage; that can
help to improve education, economic, and health
conditions of ethnic Tibetans living in Tibetan areas
of China; and that create sustainable benefits without
encouraging an influx of non-Tibetans into these areas.
Such assistance to Tibetans is of increased importance
following the start of operation of the Qinghai-Tibet
railway.
Raise in meetings and correspondence with
Chinese officials the cases of Tibetans who are
imprisoned as punishment for the peaceful exercise of
human rights. Representative cases include: monk
Choeying Khedrub (sentenced to life imprisonment for
printing leaflets); and reincarnated lama Bangri
Chogtrul (serving a sentence of 18 years commuted from
life imprisonment for ``inciting splittism'').
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. The views and recommendations
expressed in this report, however, do not necessarily reflect
the views of individual Executive Branch members or the
Administration.
This report was adopted by a vote of 20 to 1.
Political Prisoner Database
a powerful resource for advocacy
Most of the Annual Report's sections provide information
about Chinese political and religious prisoners\3\ in the
context of specific human rights and rule of law abuses, and as
the result of the Chinese Communist Party and government's
application of policies and laws. The Commission relies on the
Political Prisoner Database (PPD) for its own advocacy and
research work, including the preparation of the Annual Report,
and routinely uses the database to prepare summaries of
information about political and religious prisoners for Members
of Congress and senior Administration officials.
The Commission invites the public to read about issue-
specific Chinese political imprisonment in sections of this
Annual Report, and to access and make use of the PPD at http://
ppd.cecc.gov.
The PPD has served, since its launch in November 2004, as a
unique and powerful resource for governments, nongovernmental
organizations (NGOs), educational institutions, and individuals
who research political and religious imprisonment in China, or
that advocate on behalf of such prisoners. The most important
feature of the PPD is that it is structured as a genuine
database and uses a powerful query engine. Though completely
Web-based, it is not an archive that uses a simple or advanced
search tool, nor is it a library of Web pages and files. The
PPD received approximately 28,000 online requests for prisoner
information during the 12-month period ending July 31, 2007.
About one-quarter of the requests for prisoner information
originated from government Internet domains (.gov).
political prisoners
The PPD seeks to provide users with prisoner information
that is reliable and up-to-date. Commission staff members work
to maintain and update political prisoner records based on
their areas of expertise. Staff seek to provide objective
analysis of information about individual prisoners, and about
events and trends that drive political and religious
imprisonment in China.
The PPD contained approximately 4,060 individual case
records of political imprisonment in China as of September
2007. The Dui Hua Foundation, based in San Francisco, and the
Tibet Information Network, based in London, shared their
extensive experience and data on political and religious
prisoners in China with the Commission to help establish the
database.\4\ The Dui Hua Foundation continues to do so. The
Commission also relies on its own staff research for prisoner
information, as well as on information provided by NGOs and
other groups that specialize in promoting human rights and
opposing political and religious imprisonment.
database technology
The PPD aims to provide a technology with sufficient power
to cope with the scope and complexity of political imprisonment
in China. Upgrades to the database should be in operation
before publication of the Commission's 2008 Annual Report, and
will increase the number of types of information available and
allow the PPD to function in an interactive manner with other
Commission resources and reports. The upgrade will leverage the
capacity of these Commission resources to support research,
reporting, and advocacy by the U.S. Congress and
Administration, and by the public, on behalf of political and
religious prisoners in China.
Providing Information to Users While Respecting Their Privacy
The design of the PPD allows anyone with Internet access to
query the database and download prisoner data without providing
personal information to the Commission, and without the PPD
downloading any software or Web cookies to a user's computer.
Users have the option to create a user account, which allows
them to save, edit, and reuse queries, but the PPD does not
require a user to provide any personal information to set up
such an account. The PPD does not download software or a Web
cookie to a user's computer as the result of setting up such an
account. Saved queries are not stored on a user's computer. A
user-specified ID (which can be a nickname) and password are
the only information required to set up a user account.
Powerful Queries Provide Useful Responses
Each prisoner's record describes the type of human rights
violation by Chinese authorities that led to his or her
detention. These include violations of the right to peaceful
assembly, freedom of religion, freedom of association, and free
expression, including the freedom to advocate peaceful social
or political change and to criticize government policy or
government officials. Since inception, the PPD has allowed
users to conduct queries on 19 categories of prisoner
information. Users may search for prisoners by name, using
either the Latin alphabet or Chinese characters. Users may
construct queries to include one or more types of data,
including personal information (ethnic group, sex, age,
occupation, religion), or information about imprisonment
(current status of detention, place of detention, prison name,
length of sentence, legal process).
Many records contain a short summary of the case that
includes basic details about the political or religious
imprisonment and the legal process leading to imprisonment.
Users may download and save the results of queries as Adobe
Acrobat files or Microsoft Excel spreadsheets.
Upgrading the Database To Leverage Impact
The Commission expects to begin work to upgrade the PPD
soon after publication of the 2007 Annual Report. When
completed, the upgrade will approximately double the number of
types of information available, making it possible for users to
query for and retrieve information such as the names and
locations of the courts that convicted political and religious
prisoners, and the dates of key events in the legal process
such as sentencing and decision upon appeal. The upgrade will
double the length of the short summary about a prisoner. Users
will be able to download PPD information more easily, whether
for a single prisoner record, a group of records that satisfies
a user's query, or all of the records available in the
database.
The upgrade will also enable the PPD to provide Web links
in a record's short summary that can open reports, articles,
and texts of laws that are available on the Commission's Web
site or on other Web sites. In the same way, Web links in
Commission reports and articles will be able to open a
prisoner's PPD record. The Commission intends that streamlining
and enhancing a user's browsing and research experience will
leverage the impact of Commission resources and contribute in a
tangible manner to a user's research and advocacy efforts on
behalf of political and religious prisoners in China.
Recommendations
When composing correspondence advocating on behalf of a
political or religious prisoner, or preparing for official
travel to China, Members of the Congress and Administration
officials are encouraged to:
Check the database (http://ppd.cecc.gov) for
reliable, up-to-date information on one prisoner, or on
groups of prisoners.
Check a prisoner's database record for
available information on the public and state security
issues, laws, and legal processes that may apply to the
prisoner's case.
Advise official and private delegations
traveling to China to present Chinese officials with
lists of political and religious prisoners compiled
from database records.
Urge U.S. state and local officials and
private citizens involved in sister-state and sister-
city relationships with China to explore the database,
and to build new advocacy efforts for the release of
political and religious prisoners in China.
II. Human Rights
Rights of Criminal Suspects and Defendants
introduction
Since 2001, the Commission has been monitoring the
development of human rights and the rule of law in China. The
Commission's legislative mandate calls for scrutiny of Chinese
government actions that either comply with or violate the
fundamental human rights enjoyed by all individuals, including
those individuals accused of a crime under China's domestic
laws. The mandate calls specifically for the monitoring of
criminal defendants' rights,
including the right to be tried in one's own presence; to
defend oneself in person or through legal assistance; to be
informed of the
opportunity for trial and criminal defense; to receive legal
aid services where necessary; to be afforded a fair and public
hearing by a competent, independent, and impartial tribunal; to
be presumed innocent until proven guilty; and to be tried
without undue delay.\1\ In addition, the mandate requires that
the Commission focus continuing attention on those individuals
believed to be imprisoned, detained, placed under house arrest,
tortured, or otherwise persecuted by Chinese government
officials in retaliation for the mere pursuit of their
rights.\2\
The Commission's annual report recommendations over the
past five years have focused on the gap between mere legal
ideals and actual law enforcement practice. In 2002, 2004, and
2006, the Commission underscored the continuing need to help
fund and strengthen the work of criminal defense lawyers in
China. In 2003, and again in 2006, the Commission emphasized
that the detention and imprisonment of activists and rights
defenders only serve to undermine the legitimacy of China's
developing legal system. It thus called for the need to press
for release of targeted individuals. Between 2002 and 2004, the
Commission underscored the significance of multilateral and
diplomatic efforts in encouraging the Chinese government to
grant unconditional visits to the UN Working Group on Arbitrary
Detention and the UN Special Rapporteur on Torture.\3\ Based on
the findings of those UN bodies, the Commission focused in 2006
on the urgency of reforming China's administrative detention
system, abolishing forced labor practices, and
ensuring that the procuracy exercise greater oversight over
police abuses.
Domestic and international developments in 2006 have helped
to highlight the Chinese leadership's desire to increase
China's profile among the international community of rule of
law nations. China was elected to serve for a three-year term
on the newly established UN Human Rights Council, noting in its
application that it had acceded to 22 international human
rights accords, including 5 of the 7 core conventions.\4\ The
Chinese government promised that it would amend its Criminal,
Civil, and Administrative Procedure Laws, as well as reform its
judiciary, in preparation for ratification of the International
Covenant on Civil and Political Rights.\5\ In addition, Chinese
citizens were appointed to lead international bodies such as
the International Association of Anti-Corruption Authorities
and the World Health Organization.\6\
While the Commission recognizes the progress that China has
made in bringing its own practices into compliance with
international standards, it also notes that significant gaps
remain within Chinese laws and regulations, and between law on
the books and law in action. The ideals embodied in recent
legal and regulatory reforms are positive first steps, but
nonetheless incomplete, and have not necessarily translated
into the everyday practice of local law enforcement officers.
For example, international human rights standards require that
due process of law be accorded to all criminal suspects and
defendants, and that they be free from torture, arbitrary
detention, and prosecution on the basis of their political
opinions or exercise of human rights.\7\ Nonetheless, China's
Criminal Law, Criminal Procedure Law, and accompanying
regulations leave too much room for discretion and abuse. As a
result, NGO and media reports indicate that criminal defense
efforts have been hampered, numerous Chinese citizens continue
to be arbitrarily detained and convicted, and torture remains
widespread.
The Commission's findings in this section have been placed
in the context of five years of monitoring and reporting on
criminal justice reform, and take into account some of the
systemic problems that have persisted throughout China during
that timeframe. In many areas of criminal procedure, reforms
that were initiated several years ago have stalled in the past
year, and failed to achieve the goals of better protecting
human rights and guarding against official abuse. The problems
that persist, and the reforms designed to confront those
problems, are analyzed in greater detail throughout the
remainder of this section. The first part of the section
discusses continuing abuses of criminal law and procedure,
while the second part turns to institutional failings that make
these abuses possible.
law in action: abuses of criminal law and procedure
Arbitrary Detention
The UN Working Group on Arbitrary Detention (UNWGAD)
defines the deprivation of personal liberty to be ``arbitrary''
if it meets one of the following criteria:
there is clearly no legal basis for the
deprivation of liberty;
an individual is deprived of his liberty
because he has exercised rights and freedoms guaranteed
under the Universal Declaration of Human Rights (UDHR)
or International Covenant on Civil and Political Rights
(ICCPR); or
non-compliance with the standards for a fair
trial set out in the UDHR and other relevant
international instruments is sufficiently grave to make
the detention arbitrary.\8\
The ICCPR provides that the deprivation of an individual's
liberty is permissible only ``on such grounds and in accordance
with such procedure as are established by law,'' and that an
individual must be promptly informed of the reasons for his
detention and any charges against him.\9\
Arbitrary detention in China takes several different forms,
including detention and incarceration for the peaceful
expression of civil and political rights, detention and
incarceration in circumvention of criminal procedure
protections, and illegal extended detention in violation of
China's own Criminal Procedure Law.
Political Crimes
China's Criminal Law was revised by the National People's
Congress in 1997 to eliminate mention of the socialist
revolution and counterrevolutionary crimes, but to otherwise
preserve the political and economic orientation of the Chinese
criminal justice system:
The aim of the Criminal Law of the People's Republic of
China is to use criminal punishments to fight against
all criminal acts in order to safeguard security of the
State, to defend the State power of the people's
democratic dictatorship and the socialist system, to
protect property owned by the State, and property
collectively owned by the working people and property
privately owned by citizens, to protect citizens'
rights of the person and their democratic and other
rights, to maintain public and economic order, and to
ensure the smooth progress of socialist
construction.\10\
Nonetheless, Chinese prisons continue to hold individuals
who were sentenced for counterrevolutionary and other crimes
that no longer exist under the current Criminal Law.\11\
Shortly preceding the annual session of the UN Human Rights
Commission in 2005,\12\ Chinese central government officials
pledged to ``provide relief'' to those imprisoned for political
acts that were no longer crimes under the law.\13\ The U.S.
State Department reported that in 2006, despite the urging of
foreign governments, the Chinese government had yet to conduct
a national review of such cases and continued to hold
approximately 500 individuals in prison for
counterrevolutionary crimes alone.\14\
Developments over the last year have breathed new life into
this issue. The Dui Hua Foundation, which researches and seeks
to curb political imprisonment, recently confirmed that on
November 11, 2007, Chinese authorities will release one of the
last known prisoners serving a sentence for the former crime of
``hooliganism.'' \15\ Authorities originally detained Li
Weihong, a manufacturing worker in Changsha city, Hunan
province, in April 1989 for helping to organize protests that
subsequently turned
violent. In February 2006, authorities released journalist Yu
Dongyue, who was detained for throwing paint during the
Tiananmen democracy protests of 1989 and later convicted of
``counterrevolutionary propaganda'' and ``counterrevolutionary
sabotage and incitement.'' \16\ Numerous others remain in
prison for counterrevolutionary crimes, including: Hu Shigen,
who helped to establish the China Free Trade Union Preparatory
Committee and China Freedom and Democracy Party, and was later
convicted of ``organizing and leading a counterrevolutionary
group'' and ``engaging in counterrevolutionary propaganda and
incitement'' \17\ [see Section II--Worker Rights for additional
information about his case]; and former Tibetan monk Jigme
Gyatso, who was detained for distributing pro-independence
leaflets and putting up posters and later convicted of
``forming a counterrevolutionary organization'' \18\ [see
Section IV--Tibet for additional information about his case].
The Chinese central government officially maintains that
there are no ``political prisoners'' in China, but ample
evidence suggests that the Criminal Law is routinely abused to
target and imprison individuals for their political opinions or
the exercise of their fundamental human rights. China's
official position on this issue has remained the same since
1991, when the State Council Information Office issued its
first white paper on human rights: ``In China, ideas alone, in
the absence of action which violates the criminal law, do not
constitute a crime; nobody will be sentenced to punishment
merely because he holds dissenting political views.'' \19\
However, since 2002, the Commission has reported on the
repeated
harassment, detention, and imprisonment of political
dissidents, journalists, writers, lawyers, human rights
defenders, Protestants, Catholics, Falun Gong practitioners,
Tibetans, and Uighurs, among other groups. Many of these
individuals continue to serve long prison or reeducation
through labor sentences as a result of their peaceful exercise
of fundamental rights guaranteed under China's Constitution,
the UDHR, and the ICCPR.\20\
The ability of local law enforcement officers to target and
punish these individuals is made possible, in large part, by
the existence of vague criminal and administrative provisions,
which allow for the punishment of activists for crimes of
``disturbing public order'' and ``endangering state security.''
\21\ Over the past five years, the Commission has reported on
numerous instances in which these two categories of crimes have
been used to charge and convict individuals for their politics,
beliefs, and affiliations.\22\ After a 2004 visit to China, the
UN Working Group on Arbitrary Detention (UNWGAD) recommended
that the Chinese government define these crimes in precise
terms and create exceptions under the Criminal Law for peaceful
activity in the exercise of fundamental rights guaranteed by
the UDHR.\23\ In his March 2006 report to the UN, Special
Rapporteur on Torture Manfred Nowak noted that to date,
UNWGAD's recommendation has not been implemented.\24\ He
further concluded: ``The vague definition of these crimes
leaves their application open to abuse particularly of the
rights to freedom of religion, speech, and assembly.'' \25\ In
its 2006 Annual Report, the Commission echoed these
international calls for greater clarity in the definition of
such crimes under Chinese law. No progress has been made on
this front.
The reality is that Chinese citizens remain susceptible to
detention and incarceration as punishment for political
opposition to the government, as well as for exercising or
advocating human rights. China's leaders say that they are
committed to building a fair and just society based on the rule
of law, with adequate guarantee of civil and political rights.
In order to demonstrate true commitment to these claims,
China's leaders need to ensure the prompt review of cases in
which an individual was charged with counterrevolutionary
crimes. They have already set a precedent for doing so, by
resolving and releasing one of the last known prisoners serving
a sentence for hooliganism, another crime eliminated by the
1997 revision to the Criminal Law. Logical next steps would
include taking prompt action to clarify the Criminal Law's
vague definitions of crimes that ``disturb public order'' or
``endanger state security,'' and providing for the parole or
immediate release of all political prisoners.
Detention Outside the Criminal Process
Chinese law enforcement officers routinely detain
individuals without formal charge or judicial review, in
contravention of international human rights standards and
Chinese law. Both the UDHR and ICCPR provide that everyone is
entitled to a ``fair and public hearing'' by an ``independent
and impartial tribunal,'' and that the accused shall enjoy
``the right to be presumed innocent until proved guilty
according to law.'' \26\ These guarantees have been
incorporated into China's Criminal Procedure Law (CPL) and
related regulations. Nevertheless, public and state security
officials regularly authorize mass security sweeps and take
advantage of law
enforcement tools that include incommunicado detention,
surveillance, house arrest, and administrative detention
measures such as reeducation through labor, to harass and
control Chinese citizens.
In some instances, police hold individuals in custody for a
few days before ultimately releasing them, without any
justification other than a general desire to avoid protests and
other instances of social unrest that might undermine Party
governance. The CPL permits detention without arrest or charge,
but generally requires notification of family members or the
detainee's workplace within 24 hours of custody.\27\ Public
security officials have been known to conduct mass security
sweeps during politically sensitive periods in China, including
the approach of significant public anniversaries, the annual
sessions of Party or central government officials, and the
duration of visits by foreign dignitaries.\28\ Citizens from
localities throughout China travel to Beijing to voice their
complaints before central government offices, often
congregating together in ``petitioners' villages'' on the
city's outskirts. [See Section III--Access to Justice for a
discussion of petitioning]. NGO and media sources have reported
that police officers conduct night raids of these villages,
sending petitioners to a special holding location called
``Majialou'' pending their forced repatriation home.\29\ In
2006, a senior official from the Ministry of Public Security
justified such security sweeps on the basis of the government's
need to ``manage public order'' and to ``reduce some of the
factors threatening social stability.'' \30\
In March 2007, officials launched ``the largest `clean-up'
operation by the police in recent years'' and detained over 700
individuals.\31\ According to Human Rights Watch (HRW), the
detentions of more than 700 individuals in advance of this
year's session of the National People's Congress were ``widely
seen as a grand rehearsal in public order tactics for two even
more important upcoming events: the Communist Party's 17th
Congress in October 2007 and the Olympics Games in 2008.'' On
August 30, officials posted notice of imminent plans to
demolish an area bordering the southern railway station in
Beijing, where an estimated 3,000 to 4,000 petitioners
congregate.\32\ The notice provides a three-week deadline for
relocation and attributes the timing of the demolition to
planned road construction, but HRW asserts that it may also be
the result of the ``clean-up'' in advance of the Party
Congress.\33\
In other instances, Chinese law enforcement officers have
relied on measures such as surveillance and house arrest\34\ to
punish and control political activists, despite the lack of any
legal basis for such deprivations of liberty. Brad Adams,
Director of HRW's Asia Division, has commented that house
arrest is becoming ``the weapon of choice for the authorities
in silencing and repressing civil rights activists.'' \35\ He
added, ``It is imposed at the entire discretion of the police
and takes place outside of any legal procedure--you can't get
more arbitrary than that.'' The case of Chen Guangcheng, a
legal advocate who exposed and challenged the abuses of local
population planning officials in Linyi city, Shandong province,
provides one concrete example to support HRW's analysis. Public
security officials at the county level placed Chen under house
arrest in September 2005, one year before authorities
ultimately charged and convicted him.\36\ A network of Chinese
human rights activists and groups worked with Chen's defense
lawyers to submit information about his case to the UNWGAD, the
UN Special Rapporteur on the Independence of Judges and
Lawyers, and the Special Representative of the Secretary
General for Human Rights Defenders.\37\ Around the time of
Chen's retrial on November 27, 2006, the same public security
officials issued a formal decision to place Chen's wife, Yuan
Weijing, under house arrest from November 28, 2006 until May
27, 2007.\38\ Despite the expiration date made explicit in this
order, security officers reportedly obstructed Yuan's attempts
to meet with U.S. Embassy officials in July 2007 and prevented
her from exiting the country in August to receive an award on
behalf of her husband.\39\
In cases where there is insufficient evidence to proceed
with formal prosecution,\40\ or it is expedient for the local
government to keep watch over an activist for up to several
years,\41\ public security officials have taken advantage of
their power to punish Chinese citizens through administrative
sanction. Chinese law allows for punishment that includes
``administrative,'' rather than criminal, detention of
individuals who have been accused of ``public security''
offenses such as public order disturbances, traffic offenses,
prostitution, and other ``minor crimes'' under the Criminal
Law.\42\ Pursuant to the Public Security Administration
Punishment Law (PSAPL), effective March 1, 2006, public
security officials can impose sanctions ranging from a warning
or fine, to a maximum of 20 days in administrative
detention.\43\ A total of 165 offenses, including ``taking on
the name of religion or qigong to carry out activities
disturbing public order,'' \44\ are subject to sanctions under
the PSAPL. In November 2006, three house church Christians in
Wendeng city, Shandong province, succeeded in forcing the local
public security bureau (PSB) to rescind its decision to hold
them in administrative detention for 10 days for allegedly
committing this particular offense under the PSAPL.\45\ Their
success was attributable to the PSB's willingness to reach an
out-of-court settlement and therefore avoid the issue of
whether the detention had violated their constitutional and
legal rights.\46\ [See Section II--Freedom of Religion--
Religious Freedom for China's Protestants for a more detailed
analysis of efforts to defend religious rights.] Li Baiguang,
who represented the three, agreed to drop the administrative
complaint that he had filed on October 12 against the PSB in
exchange for its promise to rescind the decision.\47\
China's system of ``reeducation through labor'' (RTL) has
long drawn fire from various members of the international
community as the most egregious abuse of administrative
detention measures. Under the RTL system, public security
officials can investigate a case and propose that an individual
be confined to a RTL center for up to three years, with the
possibility of a one-year extension.\48\ The list of offenses
subject to RTL is broad and vaguely defined,\49\ lending itself
to abuse by public security officials in order to silence
Chinese citizens who attempt to express their political
opinions or assert their fundamental rights.\50\ Moreover, the
RTL administrative committees that are responsible for making
the final decision consist of representatives from each of the
local public security, civil affairs, and labor bureaus,\51\
but in practice, are dominated by public security
officials.\52\ Despite being harsher than some criminal
punishments,\53\ a RTL decision is typically imposed in the
absence of judicial review by an independent and impartial
tribunal.\54\ The Chinese government has argued that
administrative detention decisions are subject to judicial
review under the Administrative Litigation Law (ALL), but the
UNWGAD found ALL review ``of very little value'' and maintained
that ``no real judicial control has been created over the
procedure to commit someone to [reeducation] through labor.''
\55\ In practice, the decision to confine someone to a RTL
center is rarely successfully challenged.\56\ Between 1999 and
2002, the number of individuals held in RTL centers was
estimated to range from 260,000 to 300,000.\57\ According to
the U.S. State Department, official statistics released in 2005
reflect the rapid growth of these numbers over the past few
years, to a new total of approximately 500,000.\58\
Chinese authorities use RTL and other forms of
administrative detention to circumvent the criminal process in
a manner which disregards the procedural protections guaranteed
under domestic and international law.\59\ China's Legislation
Law requires that all deprivations of personal liberty be
authorized by national law, and not just by administrative
regulation.\60\ Under the criminal justice system, a Chinese
citizen cannot be found guilty of any crime, even a ``minor
crime,'' without being judged guilty by a people's court.\61\
The Constitution makes explicit the inviolable nature of a
person's liberty and further dictates:
No citizen may be arrested except with the approval or
by decision of a people's procuratorate or by decision
of a people's court, and arrests must be made by a
public security organ. Unlawful deprivation or
restriction of citizens' freedom of person by detention
or other means is prohibited. . . .\62\
While the Chinese government consistently emphasizes the
beneficial ``reeducation'' function of administrative detention
measures,\63\ Manfred Nowak, UN Special Rapporteur on Torture,
found after visiting China that ``some of these measures of
[reeducation] through coercion, humiliation and punishment aim
at altering the personality of detainees up to the point of
even breaking their will.'' \64\ In his March 2006 report,
Nowak concluded that RTL and other forms of administrative
detention ``go beyond legitimate rehabilitation measures
provided for in [A]rticle 10 of the ICCPR.'' \65\ During the
seven years between visiting China in 1997 and again in 2004,
the UNWGAD found that the Chinese government had made no
significant progress in reforming the administrative
detention system to ensure judicial review and to conform to
international law.\66\
Domestic pressure has been building to reform the RTL
system,\67\ but efforts have focused on better codification,
rather than outright elimination, of the practice. Since March
2005, the National People's Congress (NPC) has been considering
a new Law on the Correction of Unlawful Acts that would
reportedly enhance the rights of RTL detainees by setting a
maximum sentence of 18 months, and by permitting detainees to
hire a lawyer, request a hearing, and appeal decisions imposed
by public security officials in RTL cases.\68\ The draft law
does not currently provide the accused with an opportunity to
dispute accusations of guilt before an independent adjudicatory
body.\69\ According to one drafter, the Ministry of Public
Security and the Supreme People's Court continue to disagree
about whether courts should get involved in the decision making
process prior to administrative enforcement of a RTL
decision.\70\ In an attempt to enhance the transparency of the
process,\71\ Chongqing municipality recently issued Interim
Provisions on Legal Representation in RTL Cases, which went
into effect on April 1, 2007, and provide that a suspect may
retain a lawyer to contest the legality of the process, access
the files relevant to his case, and present proof of his
innocence.\72\ The Interim Provisions mirror some of the
criminal procedure protections contained in the CPL,\73\ and
could potentially be incorporated into the draft law now
pending before the NPC.\74\ While greater access to legal
representation is a positive sign, some in China maintain that
the RTL system as a whole still contradicts provisions in the
Chinese Constitution, CPL, and ICCPR.\75\
Illegal Extended Detention in the Criminal Process
In cases that enter the formal criminal process in China,
public security, procuratorate, and court (collectively
referred to as gongjianfa) officials continue to illegally
detain Chinese citizens for long periods of time before
determining the outcome of their cases. The National People's
Congress (NPC) revised the Criminal Procedure Law (CPL) in 1996
to impose fixed deadlines for the resolution of each stage of
the criminal process.\76\ In 2003, the Supreme People's Court
(SPC) took the lead by additionally issuing a notice to set
time limits for the resolution of cases of extended detention
in violation of the CPL.\77\ The Supreme People's Procuratorate
(SPP) soon followed by passing regulations to prohibit the
abuse of legal procedures in order to disguise extended
detention.\78\ The SPC and SPP then worked together with the
Ministry of Public Security (MPS) to issue a joint Notice on
the Strict Enforcement of the Criminal Procedure Law, and on
the Conscientious Correction and Prevention of Extended
Detention.\79\ The launch of such a major public campaign to
eliminate illegal extended detention tacitly signaled
acknowledgment by the central government of law enforcement
abuses throughout the country.
Extended detention contravenes international standards for
the prompt judicial review of a criminal detention or arrest.
The ICCPR provides that ``[a]nyone arrested or detained on a
criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power,''
and that ``[a]nyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court,
in order that the court may decide without delay on the
lawfulness of his detention and order his release if the
detention is not lawful.'' \80\ In December 2004, the UNWGAD
found that the CPL and related regulations on pretrial
detention fail to meet these basic standards because: (1)
Chinese suspects continue to be held for too long without
judicial review; (2) procurators, who review arrest decisions,
only examine case files and do not hold hearings; and (3) a
procurator cannot be considered an independent adjudicator
under applicable international standards.\81\
International scrutiny of this problem over the last few
years has led to a dramatic decrease in the number of extended
detention cases reported by the Chinese government. In 1998,
Chinese procuratorates identified and called for the resolution
of extended detention cases involving 70,992 individuals.\82\ A
white paper on the status of human rights in 2003 noted that
extended detention cases involving 25,736 individuals had been
resolved that year, accounting for a nationwide effort that was
``the most extensive in scope, the biggest in scale and the
largest in number of people
involved in the nation's judicial experience.'' \83\ By 2004,
central government officials reported that there were no cases
of extended detention among public security bureaus or
procuratorates, and that Chinese courts had cleared extended
detention cases involving just 2,432 individuals.\84\ In
January 2006, the Chinese government told Manfred Nowak, UN
Special Rapporteur on Torture, that serious cases of extended
detention lasting more than three years had been eliminated,
and that the number of individuals held beyond time limits was
at an all-time low.\85\ This claim was repeated again in March
2007, when the SPP identified in its work report to the NPC an
all-time low of just 233 individuals cleared from extended
detention.\86\
The continued decrease in cases of extended detention
depends heavily on continued central government efforts to
increase transparency and hold local law enforcement officials
strictly accountable to the CPL. In May 2006, the SPP
explicitly acknowledged that illegal extended detentions remain
problematic, and that Chinese authorities misuse provisions in
the CPL to disguise this problem.\87\ Several months later, SPC
President Xiao Yang echoed this acknowledgement and stated in
an interview with the People's Daily that ``delayed justice is
a form of injustice.'' \88\ In March 2007, the Standing
Committee of the National People's Congress (NPCSC) commented
on the significance of oversight mechanisms in helping to
tackle the problem of extended detention.\89\ SPP spokesman
Dong Jianming has attributed the decrease in cases of extended
detention to the NPCSC's push--and the resulting joint effort
among gongjianfa officials nationwide.\90\ Gongjianfa officials
have continued to work together to finalize new regulations
seeking to further address the problem.\91\ In addition,
China's unique system of ordinary citizens who function as
``people's supervisors''
expanded its oversight powers in the last year, to guard
against illegal extended detentions by all three
institutions.\92\ This move holds great potential for enhanced
public supervision of law enforcement agencies during the
criminal process.
Torture and Abuse in Custody
Although illegal in China, torture and abuse by law
enforcement officers remain widespread.\93\ In March 2006,
Manfred Nowak, UN Special Rapporteur on Torture, reported that
Falun Gong practitioners make up the overwhelming majority of
victims of alleged torture, and that other targeted groups
include Uighurs, Tibetans, human rights defenders, and
political activists.\94\ Over three-quarters of all alleged
acts of torture take place in venues where public security
officials have chosen to confine criminal suspects.\95\ Forty-
seven percent of alleged perpetrators are police or other
public
security officials, while 53 percent are either staff members
at correctional facilities or fellow prisoners acting at the
instigation or acquiescence of staff members.\96\ Forms of
torture and abuse cited in Nowak's report include beating,
electric shock, painful shackling of the limbs, denial of
medical treatment and medication, and hard labor.\97\
Chinese media reports in 2005 about the wrongful conviction
of She Xianglin, and in 2006 about the wrongful detentions and
torture of four teenagers in Chaohu city, Anhui province, help
to shed light on numerous institutional and legal factors that
are to blame for the continuing problem of torture in
China.\98\ In both cases, authorities relied heavily on
confessions obtained during interrogation as evidence of
alleged crimes. She Xianglin, who was originally convicted of
murder after the disappearance of his wife in 1994, was
ultimately released in April 2005 after 11 years in prison and
his wife's unexpected return to their village in Hubei
province.\99\ The Chaohu teenagers, who ranged in age from 16
to 18, were released in January 2006 after more than three
months in police custody and further investigative efforts
leading to the arrests of four other suspects.\100\ Both cases
reflect a number of institutional hurdles at the heart of the
torture issue, including pressure on public security bureaus to
meet quotas for cracking down on crime, inadequate training and
investigative tools, and the lack of independence and oversight
exercised by the procuracy and judiciary.\101\ They also
spotlight continuing legal challenges, including a strong
presumption of guilt in criminal cases, the abuse of
administrative detention measures, the absence of lawyers at
interrogations, the lack of a rule requiring the exclusion of
illegally acquired evidence, failure by procuratorates to
prosecute torture cases, and inadequate complaint mechanisms.
Since releasing China's Third Report on the Implementation
of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) in 2000,\102\ central
government leaders have repeatedly emphasized their ongoing
efforts to pass new laws and administrative regulations
preventing, punishing, and compensating cases of torture by law
enforcement
officers.\103\ For example, China's Criminal Law provides for
the punishment of judicial officers who coerce confessions
under torture or acquire evidence through the use of force, and
also imposes liability in particularly ``serious'' cases where
police or other corrections officers have beaten or otherwise
mistreated prisoners.\104\ In 2003, the Ministry of Public
Security (MPS) issued a new regulation to also prohibit the use
of torture as an investigative tool in administrative
cases.\105\ The following year, the Party,\106\ MPS,\107\ and
Supreme People's Procuratorate (SPP)\108\ each passed
regulations to provide for Party or administrative sanction
(including demerits, demotions, and dismissals) of officials
who employ torture as an investigative tool to coerce
confessions. The Ministry of Justice (MOJ) issued similar
regulations in 2006 to provide for both administrative sanction
and criminal investigation of prison and reeducation through
labor (RTL) police who beat, or instigate others to beat,
detainees.\109\ SPP regulations that went into effect on July
26, 2006, provide detailed criteria for the criminal
prosecution of police who abuse their power to hold individuals
in custody beyond legal limits, coerce confessions under
torture, acquire evidence through the use of force, mistreat
prisoners, or retaliate against those who petition to, or file
complaints against, the government.\110\
Despite international safeguards and recent domestic
reforms designed to help guard against torture in China, one
China scholar has noted that ``persons acting in an official
capacity who torture and ill-treat others in violation of the
[CAT] generally do so with impunity.'' \111\ Two months after
Xinhua and Southern Metropolitan Daily reports revealed the
extent to which the Chaohu teenagers had been tortured while in
custody,\112\ two senior SPP officials called on local
procuratorates to strengthen their supervision over criminal
investigations, and to bring into line police who extract
confessions through torture or who illegally gather evidence.
Deputy Procurator-General Wang Zhenchuan acknowledged that
almost all wrongful convictions in China involve police abuses
during the investigative stage,\113\ and Chen Lianfu, head of
the SPP office that investigates official misconduct and rights
infringement, reported that systemic reforms still had to be
implemented.\114\ Neither provided statistics to detail the
number of officials who had been prosecuted for torture in
recent years, but SPP work reports submitted to the National
People's Congress indicate that the number of officials
investigated for civil rights abuses, including torture,
totaled 1,983 in 2001, 1,408 in 2003, and 1,595 in 2004.\115\
This number dropped to 930 in 2006, the same year that the SPP
released its regulations on filing rights abuse cases for
prosecution.\116\ It is difficult to analyze how many Chinese
officials go unpunished in any given year, particularly when
the central government does not recognize the competence of the
Committee against Torture to investigate allegations of
systematic torture.\117\ According to Nowak, SPP figures ``are
clearly the tip of the iceberg in a country the size of China
and demonstrate that most victims and their families are
reluctant to file complaints for fear of reprisal or lack of
confidence that their complaints will be addressed
effectively.'' \118\
Law enforcement practices in China further provide for
official impunity by failing to adequately criminalize non-
state actors who commit torture and abuse at the behest of
state actors. Nowak pointed out that this omission is one
reason that the Chinese
definition of torture fails to correspond fully to the
international standard as outlined in Article 1 of the
CAT.\119\ The MOJ's 2006 regulations are illustrative of this
point, and punish only prison and RTL police for beating, or
instigating others to beat, detainees. They do not take into
account the existing practice of ``fanren guanli fanren,''
whereby ``cell bosses'' take part in correctional facility
administration by helping officials control and punish
recalcitrants.\120\ Human Rights in China has noted that
inmates who are assigned to supervise others ``are widely known
in the system as `second-rank cadres,' or `the second
government,' indicating their power in the system.'' \121\
Imprisoned legal advocate Chen Guangcheng told his wife that on
June 16, 2007, six other inmates at Linyi Prison pushed him to
the floor, and hit and kicked him hard, at the instigation of
prison guards after he refused to have his head shaved.\122\
There is no indication that any prison guards have been
investigated as a result of this incident. In June 2005, when
fellow detainees beat to death a 15-year-old at the instigation
of a detention center superintendent in Jingdezhen city,
Jiangxi province, the local procuratorate indicted the
superintendent only for ``abuse of power to accept bribes.''
\123\ A September 2004 article on the Web site of the Chinese
People's Political Consultative Conference disclosed that
between 2003 and 2004, over 20 ``prison bosses'' had been
investigated in Guangshan county, Henan province, alone. The
article called for elimination of the practice of ``fanren
guanli fanren.'' \124\
law on the books: judicial institutions and challenges
Social Unrest and Coercive Use of Police Power
The Chinese government maintains a vast network of people's
police, who are employed in state security bureaus, public
security bureaus, prisons, reeducation through labor centers,
procuratorates, and courts throughout the nation. Public
security bureaus (PSBs) divide their police into separate
categories of ``administrative personnel'' responsible for
public security, transportation, residence and migration,
border defense, customs and immigration, fire prevention, and
management of information and Internet safety, and ``criminal
personnel'' responsible for investigation of crimes. In
addition, local PSBs employ personnel responsible for domestic
security and protection (guobao), which sometimes has been used
to justify the targeting and harassment of democracy activists,
Falun Gong practitioners, and other dissidents.\125\ Official
statistics recently disclosed that there were over 490,000 PSB
police employed as police station personnel, 130,000 as
community police officers, and 150,000 as criminal
investigators as of early 2006.\126\
Communist Party leaders have leaned heavily on the powers
of the police in order to quell social unrest during the past
few years, but earlier this year, top Ministry of Public
Security (MPS) officials acknowledged the risks inherent in
such a tactic. The MPS reported a rise in ``mass incidents,''
defined to include public demonstrations, protests, and riots
over unresolved claims,\127\ from 58,000 in 2003 to 74,000 in
2004.\128\ This figure dropped to about 27,500 in 2005, and
23,000 in 2006, \129\ accompanied by an MPS denial of the
existence of any inherent conflict between police and
civilians.\130\ Notwithstanding the decrease in numbers and the
accompanying MPS statement, there have been news reports of
increasingly violent clashes between police and protesting
villagers all over China. In December 2005, public security
officials in Shanwei city, Guangdong province, brought in
forces from the paramilitary People's Armed Police (PAP) to
handle a protest by local villagers.\131\ The PAP opened fire
onto the crowd, and some estimates placed the resulting death
count at up to 20 villagers. At a national public security
meeting convened in April 2007 in Xi'an city, Shaanxi province,
Vice Minister of Public Security Liu Jinguo emphasized the need
to avoid police mishandling of demonstrations and protests, and
warned that such mishandling could ``aggravate the conflict and
worsen the situation.'' \132\
A number of Chinese lawyers and former law enforcement
officers agree that no inherent conflict exists between police
and civilians, but they also warn that abuse of the coercive
power of the
police may create new tensions. One commentator, who formerly
taught at a public security vocational school in Zhejiang
province, attributed clashes between police and civilians to
the fact that ``Chinese police are policemen for the Party, not
for the state.'' \133\ Another commentator, who served for 18
years as a former police officer in Jiangsu province, added
that in carrying out their law enforcement duties, the police
do not carry out the laws of the state: ``They carry out the
law neither pursuant to the Police Law, nor pursuant to various
[other] laws, but instead pursuant to the will of senior Party
officials.'' \134\ He added that the ability of PSB police to
simultaneously carry out both police and ``non-police''
(namely, administrative) functions has contributed to their
loss of legitimacy in the eyes of the public.
Party and central government statements confirm that
Chinese police forces are in fact required to assist in the
advancement of Party priorities. A 2003 resolution passed by
the Communist Party Central Committee (CPCC) establishes that
``public security work must proceed under the Party's absolute
leadership.'' \135\ At its sixth plenum in October 2006, the
CPCC issued a communique to announce that ``the [Communist
Party of China]'s role as the core leadership must be brought
fully into play to build a harmonious socialist society.''
\136\ At the same plenum, the CPCC also passed a resolution
calling on police and armed forces to further strengthen public
security, state security, and national defense construction, in
furtherance of a ``harmonious society.'' \137\ The resolution
specifically called on the MPS to reform community police
affairs so that a ``frontline platform'' could be created to
service the masses and safeguard stability. Later that month,
Xinhua identified construction of this ``frontline platform''
as a significant part of Public Security Minister Zhou
Yongkang's 2006 plan to reorganize public
security agencies and send more police forces out into local
communities and villages.\138\ At a press conference in
November, the MPS reported that it had issued a new Resolution
on Implementing a Strategy for Community and Village Police
Affairs, and had already set up more than 30,000 new police
stations and dispatched more than 70,000 police officers to
watch over villages nationwide.\139\ One senior official
defined the new strategy for community and village police
affairs to be one that would allow public security agencies to
``deeply integrate'' into local communities, families, and
schools, and ``merge into one with the people,'' \140\ in the
name of safeguarding public security and order, as mandated by
the Party.
Last year's implementation of the Public Security
Administration Punishment Law (PSAPL)\141\ helps expand the
legal authority of PSB police to almost every realm of civilian
life, creating new cause for concern about police abuses and
domination over the general populace. [See Section II--Freedom
of Expression for additional discussion of abuse of the PSAPL
to exercise control over the sharing of information.] One month
after the law went into effect, police reportedly filed over
35,000 cases, leading to the investigations of over 40,000
individuals, warnings or fines issued to over 16,000, and
administrative detention of over 7,000 in Beijing alone.\142\
In a July 2006 article that asks ``Why Some Police Resemble
Crime Bosses,'' a China Youth Daily journalist comments: ``If
detention and other criminal investigation measures are used in
the administration of public security cases, while public
security aspects of the [police] power are brought into
criminal investigations, then objectively, this creates a self-
perception among some police that they are boss.'' \143\ The
article asserts that there is a certain pervasiveness to abuse
of power by the police, and that it can best be blamed on their
unchecked legal authority. In March 2007, a Shenzhen delegate
to the National People's Congress proposed revising the PSAPL
to further expand the authority of the police to detain
individuals for disruption of city management.\144\ Under his
proposal, individuals would be at the mercy of the police for
such minor offenses as running an unlicensed business or health
clinic. Within months, the China Media Project, based across
the border from Shenzhen in Hong Kong, questioned whether
Chinese police aren't already ``over-reaching'' in their
application of the PSAPL.\145\
Supervision over China's police forces has not improved in
the last year, particularly when taking into account the
concerns previously expressed by this Commission. The
Commission noted in last year's annual report: ``The government
does not encourage external supervision over police affairs or
prosecution of police abuses by the procuratorate, as mandated
by law.'' \146\ While the MPS continues to disclose the number
of police officers who have been disciplined or even dismissed
for improprieties, their sanctions are still decided and
administered internally, by Party or MPS superiors.\147\ One
prominent Beijing law professor argues that the increasingly
vicious nature of the police is attributable to this lack of
meaningful constraints either externally or internally.\148\ In
February 2006, the Procuratorial Daily published an article
that recognized the lack of power exercised by lawyers and
courts during the investigative stage of the criminal process,
and highlighted the urgency of greater procuratorate
supervision as the only means for reining in the police.\149\
Access to Counsel and Right to Present a Defense
Most Chinese defendants go through the criminal process and
are tried without assistance from an attorney, despite
guarantees under Article 14(3)(d) of the International Covenant
on Civil and Political Rights (ICCPR).\150\ In 2006, domestic
media sources reported the continuing growth of China's legal
profession to over 150,000 attorneys and 12,000 law firms
nationwide.\151\ The Chinese government requires that public
security bureaus and procuratorates notify all criminal
defendants of their right to apply for legal aid,\152\ and also
mandates that all practicing attorneys undertake the duty of
legal aid.\153\ Nonetheless, the number of criminal cases
handled per lawyer in a city like Beijing, one of China's most
legally advanced locales, fell from 2.64 in 1994 to 0.78 in
2004.\154\ The Commission noted in 2003 and 2004 that only one
in three criminal defendants have access to legal counsel. This
number fell to about 30 percent in 2005 and 2006, and has
continued to drop.\155\ China's legal system therefore makes
possible, but does not guarantee, the fundamental right to
legal assistance in defending oneself against the state.\156\
The ability to present a defense is further limited in
China because of constraints on the role that criminal defense
lawyers may play. Lawyers have long complained about the
``three difficulties'' that they face in criminal defense work:
(1) the difficulty in obtaining permission to meet with a
client, (2) the difficulty in accessing and reviewing the
prosecution's evidence, and (3) the difficulty in gathering
evidence in support of the defense. The Commission has reported
on multiple cases in which law enforcement officers abused
their discretion to deny a defendant access to his lawyer,
noting in particular abuse of the ``state secrets''
exception.\157\ [See Section II--Freedom of Expression for more
information on abuse of ``state secrets'' law.] U.S. permanent
resident Yang Jianli,\158\ democracy activist Xu Wanping,\159\
and freelance writer Yang Tongyan\160\ (who uses the pen name
Yang Tianshui) were all denied access to their defense lawyers
on the grounds that their cases involved state secrets. In
addition, Chinese law authorizes law enforcement officials to
obtain evidence from concerned parties, but provides that
evidence involving state secrets ``shall be kept
confidential.'' \161\ This effectively shields public security
and procuratorate authorities from having to turn over to the
defense any evidence they deem to be classified. In 2004, the
UN Working Group on Arbitrary Detention identified China's use
of the ``state secrets'' exception as one area of particular
concern.\162\ In April 2007, the All China Lawyers Association
(ACLA) released its first draft proposal for a new revision of
the Criminal Procedure Law, and took special note in its
executive summary of the need to eliminate these ``three
difficulties'' in criminal defense work.\163\
Chinese defendants remain vulnerable to official abuses and
faced mounting challenges to the defense of their legally
protected rights during the past two years, as lawyers in
general were increasingly called upon to contribute to the
Party's efforts to build a ``harmonious society.'' This new
role was first clarified in ACLA's 2006 guiding opinion, which
the Commission analyzed as an effort to restrict and punish
lawyers who choose to handle collective cases without
authorization.\164\ In its December 2006 report on the effects
of this guiding opinion, Human Rights Watch (HRW) asserted that
the opinion ``fundamentally harm[s] the entire profession by
limiting its independence and legitimizing the interference of
local governments in professional processes.'' \165\ HRW
further noted, ``It is not the role of lawyers to protect
social and political stability,'' but that instead, ``[t]heir
duty is to represent their clients in an ethical and
professional manner.'' \166\ ACLA's guiding opinion effectively
calls on China's legal profession to function in the interests
of the Party and state, a demand that conflicts with a lawyer's
duty to his client in criminal cases. The opinion calls into
question ACLA's ability to operate as a self-governing
professional association that works in the interests of Chinese
lawyers, without external interference. In the wake of its
issuance, a group of Beijing law professors and practicing
lawyers held a seminar to voice their concerns. Renowned lawyer
Zhang Sizhi, former ACLA president, criticized the guiding
opinion as retrogressive and warned that it would set the
country's legal profession back several decades to the
1980s.\167\
The foregoing problems are made worse by the fact that it
is increasingly dangerous for Chinese defense lawyers to carry
out their work, especially in high-profile or politically
sensitive cases. Law enforcement officials sometimes resort to
intimidating lawyers who defend these cases, charging or
threatening to charge them with crimes such as ``evidence
fabrication'' under Article 306 of the Criminal Law.\168\
Despite official recognition of the chilling effect that such
tactics have had on criminal defense work,\169\ as well as
indications that Article 306 would be repealed,\170\ this
problem persists and has become more damaging to China's legal
system in the face of unchecked police power.\171\
In May 2007, the Network of Chinese Human Rights Defenders
(CRD) published a report on ``The Perils of Defending Rights''
and included information on 20 ``endangered defense lawyers.''
\172\ This list included all of the defense lawyers that the
Commission reported on in 2006.\173\ The Hong Kong-based China
Human Rights Lawyers Concern Group issued an open letter to
President Hu Jintao and Premier Wen Jiabao, dated June 22,
2007, to demand an end to the crackdown on defense lawyers and
human rights activists.\174\ The letter points to the ongoing
harassment, targeting, and criminal cases of Gao Zhisheng, Chen
Guangcheng, Yang Maodong (who uses the pen name Guo Feixiong),
and Zheng Enchong as representative of that crackdown. In the
weeks preceding publication of this report, authorities stepped
up their campaign against those lawyers not already in official
custody. Gao, who has been living on the outside since his
three-year prison sentence was suspended in December 2006 for a
period of five years,\175\ went missing immediately after an
open letter that he sent to the U.S. Congress was made public
at a Capitol Hill press conference on September 20, 2007.\176\
Zheng, who was released from prison in June 2006 and had his
political rights reinstated in June 2007,\177\ was taken into
custody for interrogation as recently as September 29, 2007,
for his potential involvement in sending an open letter to the
United Nations.\178\ Chen Guangcheng remains in prison, serving
out his sentence of four years and three months for destruction
of property and gathering crowds to disturb traffic order. As
of the date of this report, Yang Maodong has been in detention
for one year without any resolution to his criminal case.
------------------------------------------------------------------------
Continued Crackdown on Rights Defenders
-------------------------------------------------------------------------
The UN High Commissioner for Human Rights defines a ``human rights
defender'' as someone who acts on behalf of individuals or groups to
promote and protect civil and political rights, and to promote,
protect, and realize economic, social, and cultural rights. This
definition includes those who focus on good governance and advocate
peacefully for an end to government abuses of power.
In 2006-2007, local government officials in China continued to target
for repression human rights defenders and others who turned to the law
to defend their constitutionally protected rights. Harassment of the
following high-profile lawyers and legal advocates intensified:
Chen Guangcheng
Current location: Linyi Prison.
Current status: Serving a sentence of four years and three months in
prison for ``intentional destruction of property'' and ``gathering
people to disturb traffic order.'' Reportedly beaten in June 2007 by
fellow inmates, at the behest of prison guards.
Profession and/or activity: Drew international attention in 2005 to
population planning abuses in Linyi city, Shandong province. Issued a
report that documented the extensive use of violence by local officials
in order to implement population planning policies, and assisted in a
lawsuit that sought to challenge those abuses.
Associations:
Yuan Weijing (Chen's wife and the mother of their two small
children): Under house arrest from November 28, 2006 to May 27, 2007.
Prevented from meeting with U.S. Embassy officials in July, and from
leaving the country to receive an award on her husband's behalf in
August.
Hu Jia, Zeng Jinyan (activist couple who have befriended and
spoken out on behalf of Chen and his wife): Prevented from leaving
the country for travels in May 2007. Reportedly under house arrest,
under suspicion of endangering state security.
Gao Zhisheng
Current location: Unknown.
Current status: Released from official custody on December 22, 2006 to
serve a three-year prison sentence, suspended for five years, for the
crime of ``inciting subversion of state power.'' Went missing
immediately after his open letter to the U.S. Congress was made public
at a press conference on Capitol Hill on September 20, 2007.
Profession and/or activity: Founder of the Beijing Shengzhi Law Firm and
criminal defense lawyer who has represented numerous activists,
religious leaders, and writers. Law firm was shut down in November
2005, several weeks after he issued an open letter to President Hu
Jintao and Premier Wen Jiabao to expose reports of widespread torture
against Falun Gong practitioners.
Associations:
Geng He (Gao's wife and the mother of their two children): Under
constant police surveillance since August 2006, and reportedly beaten
by plainclothes police officers in late-November.
Li Heping (Gao's friend and fellow Beijing lawyer and rights
defender): Reportedly beaten on September 29, 2007 and told to leave
Beijing immediately. Returned home to discover that some of his legal
files and his license to practice law were missing.
Guo Feixiong (Gao's colleague at the Beijing Shengzhi Law Firm): See
below.
Yang Maodong (pen name: Guo Feixiong)
Current location: Guangzhou No. 3 Detention Center.
Current status: In official custody since September 14, 2006,
transferred back and forth between Shenyang city, in Liaoning province,
and Guangzhou city, in Guangdong province. Reportedly tortured while in
detention in Shenyang. Ultimately put on trial on July 9, 2007 for
``illegal operation of a business,'' in connection with a book that he
edited about a political scandal in Shenyang. Still awaiting final
judgment on his case.
Profession and/or activity: Previously detained for three months in late
2005, after he advised villagers in Taishi, Guangdong, on their recall
campaign against an allegedly corrupt village committee head.
Zheng Enchong
Current location: Shanghai.
Current status: Released from Tilanqiao Prison in Shanghai municipality
on June 5, 2006, upon expiration of a three-year prison sentence for
``illegally providing state secrets to entities outside of China.''
Passport application denied; prevented from visiting Hong Kong in
August 2007. Taken into custody for interrogation as recently as
September 29, 2007, for alleged involvement in putting together an open
letter to the United Nations.
Profession and/or activity: Criminal defense lawyer whose license to
practice law was revoked in 2001, after he advised more than 500
households displaced by Shanghai's urban redevelopment projects.
Associations:
Guo Guoting (one of Zheng's criminal defense lawyers): License to
practice law revoked in early 2005. Placed under house arrest for
``adopting positions and making statements contrary to the law and
the Constitution.'' Ultimately forced into exile.
------------------------------------------------------------------------
Fairness of Criminal Trials
Over the past few years, Chinese courts have maintained a
consistent conviction rate above 99 percent,\179\ due in part
to the lack of fairness of criminal trials and the routine
failure to comply with standards set forth under Article 14(1)
of the International Covenant on Civil and Political Rights
(ICCPR).\180\ China's criminal justice system is strongly
biased toward a presumption of guilt, particularly in cases
that are high-profile or politically sensitive.\181\ Trial
courts are required by law to conduct their proceedings in
public, but can also resort to the ``state secrets'' exception
and conduct politically charged trials as they see fit,\182\
behind closed doors and thus shielded from public scrutiny.
Court officials have in the past also denied requests by U.S.
embassy and consular officers to attend the criminal trials of
certain political, legal, and religious activists, including
the August 2003 trial of U.S. permanent resident Yang Jianli
and the November 2005 trial of Protestant house church leader
Cai Zhuohua. Yang was released on April 27, 2007, after serving
a five-year prison sentence for alleged espionage and illegal
border crossing.\183\ Cai was released on September 10, 2007,
upon the completion of his three-year prison sentence for
printing and giving away Bibles and other religious literature
without government permission.\184\ In June 2007, the Supreme
People's Court (SPC) issued several opinions aimed at improving
trial adjudication throughout China, and called on local courts
to carry out trial proceedings lawfully, promptly, and
transparently.\185\ Nonetheless, the opinions keep intact the
``state secrets'' exception.
Chinese courts rely heavily on the defendant's confession
and on pretrial witness statements to judge guilt or innocence,
even though provisions in the Criminal Procedure Law (CPL)
explicitly prohibit this.\186\ In 2005 and 2006, the Commission
reported on several wrongful convictions that had been decided
on the basis of confessions and pretrial statements only, and
were later reversed.\187\ In the wake of She Xianglin's
wrongful conviction, a Xinhua article provided the following
quote from his lawyer: ``Throughout the case, with the
exception of She Xianglin's own confession, there was neither
any evidence nor witnesses to prove that [Mr.] She had killed
someone.'' \188\ Illegally obtained evidence, such as a
confession coerced under torture, is not currently excludable
under the CPL, and about 95 percent of witnesses fail to
appear in court to corroborate their pretrial statements. In
the executive summary to its draft proposal for a new CPL, the
All China Lawyers Association (ACLA) emphasized the adversarial
nature of the criminal justice system, and urged a greater
balance between what the prosecution and defense are allowed to
present as evidence in support of their case.\189\ ACLA's
proposal insists that the CPL be revised to clarify the
procedures for excluding illegally obtained evidence. In
addition, it urges that courts be granted the legal authority
to subpoena witnesses, noting that without this authority, a
criminal defendant is deprived of his ability to confront
witnesses and therefore present a proper defense.
The SPC made criminal justice reform one of its top
priorities for the 2004 to 2008 period, but court reforms must
proceed in the larger context of a biased judiciary in China.
The SPC's most recent five-year court reform program provides
that greater procedural protections be afforded to criminal
defendants facing the death penalty, and that officials reject
the use of illegally obtained evidence and adopt the principle
of a presumption of innocence.\190\ The program also addresses
some of the institutional problems facing the judiciary
generally, but it does not change basic Party control over the
courts. In fact, the program makes clear that courts are also
expected to strive toward the Party's ultimate goal of building
a ``harmonious society.'' Numerous structural constraints and
internal practices therefore continue to limit the independence
of Chinese courts and judges. In the Xinhua article on She
Xianglin's case, one judge commented that the court
responsibility system for wrongly decided cases, which has been
used to discipline judges for cases overturned or altered on
appeal, in fact increases the pressure felt by judges and
causes them to decide cases in a way that takes into account
various external factors.\191\ Moreover, senior court officials
and Party political-legal committees continue to influence
judicial decisionmaking, particularly in sensitive or important
criminal cases.\192\ At present, the Chinese judiciary is
therefore restricted in its ability to function as a
transparent, impartial, and independent part of the legal
system, and therefore, as a body capable of ensuring the full
protection of defendants' rights.
Death Penalty Review and Regulations Against Organ Harvesting
Chinese criminal law includes 68 capital offenses, over
half of which are nonviolent crimes such as tax evasion,
bribery, and embezzlement.\193\ In recent years, China's
central government leadership has adopted an ``execute fewer,
execute cautiously'' policy, but the government publishes no
official statistics on the number of executions and reportedly
considers this figure a state secret.\194\ Some Chinese sources
estimate that the annual number of executions in China ranges
from 8,000 to 10,000.\195\ The Dui Hua Foundation, which
researches and seeks to curb political imprisonment, estimates
that China executed about 100,000 individuals during the past
decade, accounting for more than 95 percent of all executions
worldwide.\196\ According to Dui Hua, since the late 1990s
there has been a significant rise in the executions of those
found guilty of membership in ``splittist, terrorist
organizations'' in the Xinjiang Uighur Autonomous Region.\197\
In addition, since the 1980s, numerous credible foreign media
sources have reported on the practice of state-sanctioned
removal and sale of the internal organs of executed
prisoners.\198\ One Chinese magazine disclosed in late-2005
that over 95 percent of organs transplanted in China comes from
executed prisoners, and cited to Vice Minister of Health Huang
Jiefu as the first official to publicly acknowledge that the
majority of those organs originate from such prisoners.\199\
The leaders of China's highest court have reasserted their
legal authority to review all death penalty cases in an effort
to limit the use of death sentences, and to prevent
miscarriages of justice that undermine China's criminal justice
system. Xinhua reported earlier this year: ``On Jan. 1, 2007,
the Supreme People's Court (SPC) retrieved the right to review
all death penalty decisions made by lower courts, ending its
24-year absence in approving China's execution verdicts.''
\200\ Since January, SPC officials have heralded death penalty
reform as a success, citing to the fact that the number of
death penalty sentences imposed in 2006 reached a decade-long
record low,\201\ and that during the first five months of 2007,
the number of death sentences imposed by courts in Beijing
dropped 10 percent from the same period last year.\202\ In
early September, the China Daily reported that the downward
trend had continued, and quoted one SPC vice president as
saying that ``[the SPC] is handing down a very small number of
death sentences for economic crimes now, just a few a year. And
much fewer for crimes of bribery.'' \203\ A week later,
domestic news media reported that the SPC had issued a new
decision on adjudication of criminal cases, which called for
``strict control and cautious application of the death
penalty'' \204\ (code words for the government's continuing
promise to limit the use of death penalty to only the most
serious criminal cases).
The SPC first began considering death penalty reform in
1996, when the Criminal Procedure Law was revised, but pressure
to accelerate reforms increased only after 2000, in response to
domestic media coverage about a number of wrongful convictions
that had led to unjustified executions.\205\ For example: In
early 2005, a rape and murder suspect arrested by police
confessed that he had committed the crime that had resulted in
the 1995 execution of Hebei farmer Nie Shubin.\206\ In January
2007, the Hunan provincial high court acknowledged that the
1999 execution of local farmer Teng Xingshan was for the
alleged murder of a woman who was in fact still alive.\207\
Over the past few years, the SPC has convened a number of
seminars and training sessions to help lower-level courts draw
lessons from judgments made in error.\208\ Last year, the
Commission reported that the Chinese judiciary made reform of
the death penalty review process a top priority in 2006,
introducing new appellate court procedures for hearing death
penalty cases.\209\ At the same time, the Commission also
noticed that the SPC had not yet issued a judicial
interpretation to help settle unresolved issues in the death
penalty review process and further clarify its own procedures.
SPC reform efforts during the past year have helped to
clarify a new review process by which errors will better be
detected, but reforms do not address continuing concerns about
the use of illegally obtained evidence or the lack of judicial
independence generally.\210\ The SPC's five-year court reform
program effectively creates a three-step process in death
penalty cases that is not available in ordinary criminal
cases.\211\ Beginning in 2006, provincial-level high courts are
to focus solely on appeals from lower-level courts.\212\ As of
January 1, 2007, pursuant to an amendment to the Organic Law of
the People's Courts, death penalty sentences are then submitted
to the SPC for review and approval.\213\ This extra step is
designed to provide an extra guarantee of impartiality, but an
SPC decision issued in December 2006 indicates that death
sentences subject to immediate execution (sometimes imposed
because the case has been accelerated due to intense external
pressures) still remain within the jurisdiction of provincial-
level high courts only.\214\ The SPC has more recently taken
the lead in issuing, together with the Supreme People's
Procuratorate, Ministry of Public Security, and Ministry of
Justice, a joint opinion on the entire process for handling
death penalty cases.\215\ While this may be a positive step
toward providing greater clarity and transparency throughout
the criminal process, the joint opinion still does not provide
for the excludability of illegally obtained evidence and
repeats the standard practice that such evidence cannot form
the basis for a verdict.\216\ Furthermore, the joint opinion
emphasizes the relevance and ultimate decisionmaking power of
adjudication committees at the trial and appellate court
levels, and provides for
active participation by the procuratorate, but not by defense
counsel, throughout all stages of the case.\217\
Interestingly, the new joint opinion also grants a criminal
defendant the opportunity to meet with his family prior to
execution,\218\ and prohibits ``humiliation'' of a corpse,\219\
provisions that hint at the need for greater respect for the
sanctity of the deceased. In 2006, reports from overseas
medical and legal experts condemned the government's continuing
practice of harvesting organs from executed prisoners without
their consent.\220\ In January 2007, David Kilgour, a member of
the Canadian parliament, and David Matas, a Canadian lawyer,
released a revised version of their 2006 report and explained
that the revised report ``presents, we believe, an even more
compelling case for our conclusions than the first version
did.'' \221\
Although Vice Minister Huang Jiefu and spokesmen for both
the Ministry of Health and the Ministry of Foreign Affairs have
said that organ transplants are strictly regulated, and that
donations must be accompanied by the written consent of the
donor or donor's family members,\222\ 1984 provisions governing
the use of corpses or organs from executed prisoners say that a
corpse or organ belonging to an executed prisoner may also be
used if no one has retrieved the prisoner's corpse for
burial.\223\ According to Caijing Magazine, ``in several cases,
local courts have sold organs from prisoners' cadavers without
informing their families.'' \224\ In March 2007, the State
Council passed new Regulations on Human Organ Transplants that
prohibit the purchase and sale of human organs and explain what
type of consent is needed for the donation of organs.\225\ The
new regulations specifically omit any mention of the use of
executed prisoners' organs and leave intact the 1984
provisions. After several years of discussions between the
World Medical Association andthe Chinese Medical Association,
Chinese medical authorities agreed in theory at an October 5,
2007, meeting in Copenhagen that they would not transplant
organs from prisoners or others in official custody, except
into members of the prisoner's immediate family.\226\
------------------------------------------------------------------------
Significant Death Penalty Procedural Reforms (in chronological order,
since October 2005)
-------------------------------------------------------------------------
Second Five-Year Reform Program for the People's Courts (2004-2008)
[Renmin fayuan di er ge wu nian gaige gangyao (2004-2008)]
Issued on October 26, 2005 by the Supreme People's Court.
Establishes criminal law reform, including reform of the
death penalty review process, as one of the top priorities for
judicial authorities during the 2004-2008 period.
Circular on Further Improving Court Hearing Work in Death Penalty Appeal
Cases [Guanyu jinyibu zuo hao sixing ershen anjian kaiting shenli
gongzuo de tongzhi]
Issued on December 7, 2005 by the Supreme People's Court.
Calls on provincial-level high courts to act as appellate
bodies in death penalty cases, and establishes guidelines for how
they should change their current practices.
Trial Provisions on Several Issues Regarding Court Hearing Procedures in
Death Penalty Appeal Cases [Guanyu sixing di er shen anjian kaiting
shenli chengxu ruogan wenti de guiding]
Jointly issued on September 21, 2006 by the Supreme People's
Court and Supreme People's Procuratorate.
Establishes concrete guidelines for the handling of death
penalty appeals by procuratorates and provincial-level high courts.
Decision on Amending the ``Organic Law of the People's Courts'' [Guanyu
xiugai ``Zhonghua Renmin Gongheguo renmin fayuan zuzhifa'' de jueding]
Passed on October 31, 2006 by the National People's Congress
Standing Committee.
Codifies into law the requirement that all death penalty
sentences must be reviewed and approved by the Supreme People's
Court.
Decision on Issues Relating to Consolidated Review of Death Penalty
Cases [Guanyu tongyi xingshi sixing anjian hezhun quan youguan wenti de
jueding]
Issued on December 28, 2006 by the Supreme People's Court.
Provides guidance on which death penalty cases will continue
to be reviewed by provincial-level high courts, and which cases
should be submitted to the Supreme People's Court for review.
Provisions on Some Issues Regarding Review of Death Penalty Cases
[Guanyu fuhe sixing anjian ruogan wenti de guiding]
Issued on January 22, 2007 by the Supreme People's Court.
Provides guidance to all courts on when and how to review and
approve a death sentence.
Decision on Further Strengthening Criminal Adjudication Work [Guanyu
jinyibu jiaqiang xingshi shenpan gongzuo de jueding]
Issued in September 2007 by the Supreme People's Court.
Retains the death penalty, but calls for limiting its use to
only the most serious criminal cases.
------------------------------------------------------------------------
Worker Rights
INTRODUCTION
The Chinese government does not fully respect
internationally recognized worker rights. Chinese citizens are
not guaranteed either in law or in practice full worker rights
in accordance with international standards. In the five-year
period the Commission has reported on worker rights in China,
the government has made progress in enacting more legal
protections for workers, but has continued to deny workers the
fundamental right to organize into independent unions and
strike to achieve meaningful change. In addition to these
restrictions, factors such as poor implementation of labor
protections on the books and collusion between local officials
and employers create obstacles for workers who attempt to
protect their rights. Although market liberalizations have
brought Chinese citizens more freedom to choose their
employment, along with prosperity and better jobs for some
workers, social and economic changes also have engendered
abuses from forced labor and child labor to flagrant violations
of health and safety standards, wage arrearages, and loss of
job benefits. Residency restrictions present hardships for
workers who migrate for jobs in urban areas. In addition, tight
controls over civil society organizations hinder the ability of
citizen groups to champion for worker rights.
In the last five years, local and central governments have
enacted a series of rules, regulations, and laws on labor, but
have not created the administrative structure to ensure
adequate enforcement. A new Labor Contract Law, passed in June
2007 and to take effect in January 2008, attempts to codify a
series of protections for worker rights but does not include
adequate provisions to guarantee equal bargaining power between
workers and employers, and entrenches the role of China's only
legal union, the Communist Party-controlled All-China
Federation of Trade Unions (ACFTU) in contract negotiations.\1\
The law's imprecision leaves interpretation and clarification
to the discretion of implementing officials, further limiting
the impact of potentially beneficial provisions within the law.
As the number of labor disputes rise,\2\ the government may aim
for the law to remedy this source of perceived social unrest,
but systemic weaknesses in implementing the law challenge the
law's capacity to protect workers and reduce conflict.
In 2006-2007, several high profile incidents underscored
the
inhumane conditions and weak protections under which many
Chinese work. The discovery in 2007 that a massive network of
small-scale brick kilns in Shanxi and Hunan provinces were
employing forced labor evidenced China's weakness in
effectively enforcing even its own labor and workplace safety
laws. The discovery and admission that child labor was being
used in the manufacturing of Olympic souvenirs further
illustrated the state's failure to enforce worker rights.
China's labor practices contravene its obligations as a
member of the International Labor Organization (ILO) to respect
a basic set of internationally recognized labor rights for
workers, including freedom of association and the ``effective
recognition'' of the right to collective bargaining.\3\ China
is also a permanent member of the ILO's governing body.\4\ The
ILO's Declaration on the Fundamental Principles and Rights at
Work (1998 Declaration) commits ILO members ``to respect, to
promote and to realize'' these fundamental rights based on
``the very fact of [ILO] membership.'' \5\ The ILO's eight core
conventions articulate the scope of worker rights and
principles enumerated in the 1998 Declaration. Each member is
committed to respect the fundamental right or principle
addressed in each core convention, even if that member state
has not ratified the convention. China has ratified four of the
eight ILO core conventions, including two core conventions on
the abolition of child labor (No. 138 and No. 182) and two on
non-discrimination in employment and occupation (No. 100 and
No. 111).\6\ The ILO has reported that the Chinese government
is preparing to ratify the two core conventions on forced labor
(No. 29 and No. 105).\7\ Chinese labor law generally
incorporates the basic obligations of the ILO's eight core
conventions, with the exception of the provisions relating to
the freedom of association and the right to collective
bargaining,\8\ but many of these obligations remain unrealized
in practice.
The Chinese government is a state party to the
International Covenant on Economic, Social, and Cultural Rights
(ICESCR), which guarantees the right of workers to strike, the
right of workers to organize independent unions, the right of
trade unions to function freely, the right of trade unions to
establish national federations or confederations, and the right
of the latter to form or join international trade union
organizations.\9\ In ratifying the ICESCR, the Chinese
government made a reservation to Article 8(1)(a), which
guarantees workers the right to form free trade unions. The
government asserts that application of the article should be
consistent with Chinese law, which does not allow for the
creation of independent trade unions.\10\ The Chinese
government is a signatory to the International Covenant on
Civil and Political Rights, which guarantees the right to
freedom of association, ``including the right to form and join
trade unions[.]'' \11\
Workers in China have no choice as to their representation
in the workplace. The ACFTU is China's only official trade
union and is required by the Trade Union Law to ``uphold the
leadership of the Communist Party.'' \12\ While the ACFTU has
made progress in unionizing more workplaces in China, and has
promoted pro-worker programs where they do not conflict with
Party policy, the basic structure of the union system in China
is at odds with meaningful representation of workers' rights
and interests. Surveys of local ACFTU branches have indicated
that a majority of union leaders hold concurrent positions
within Party committees, government, or enterprise. Union
leaders have represented enterprises, rather than workers, in
labor dispute arbitration.\13\
Workers who try to establish independent associations or
organize demonstrations risk arrest and imprisonment.
Independent labor organizers continue to serve long jail terms.
For example, He Chaohui, a former railway worker at the
Chenzhou Railway
Bureau and vice-chairperson of the Hunan Workers Autonomous
Federation during the May 1989 pro-democracy movement, has
faced multiple detentions, including a current nine-year
sentence, since taking part in labor strikes and
demonstrations, and giving information on the protests to
overseas human rights groups.
Another long-term prisoner, Hu Shigen (Hu Shenglun), received a
20-year sentence in 1994 for ``organizing and leading a
counterrevolutionary group'' and ``engaging in
counterrevolutionary propaganda and incitement'' after helping
to establish the China Freedom and Democracy Party and the
China Free Trade Union Preparatory Committee.\14\
LABOR CONTRACT LAW
Overview
The Standing Committee of the National People's Congress
(NPC) passed a new Labor Contract Law in June 2007, after
considering multiple draft versions and soliciting public
comments on the law.\15\ In addition to seeking public
comments, the Ministry of Labor and Social Security also sought
technical assistance from U.S. experts in drafting the law. In
2005 and 2006, a U.S. Department of Labor-funded technical
cooperation project sponsored a series of workshops and a study
tour for Chinese officials who requested to be briefed on U.S.
best practices in employment relationships, termination of
contracts, part-time employment, regulation of labor
recruitment, U.S. Wage and Hour regulations, the means of
protecting worker rights, the means of enhancing compliance,
and training for investigation.\16\
The new law, effective January 2008, governs the
contractual relationship between workers and employers from
enterprises, individual economic organizations, and private
non-enterprise units.\17\ The law expands requirements in
China's 1994 Labor Law that mandate the signing of labor
contracts.\18\ It requires workers and employers to establish a
written contract in order to begin a labor relation\19\ and
creates the presumption of an open-ended contract if the
parties have not concluded a written contract within one year
from the start of employment.\20\ The law also includes
provisions that allow certain workers with existing fixed-term
contracts to transition to open-ended employment.\21\ The law
mandates that contracts specify matters including working
hours, compensation, social insurance, and protections against
occupational hazards. In addition, the employer and worker may
add contractual provisions for probationary periods, training,
supplementary benefits, and insurance.\22\ The basic provisions
on establishing contracts accompany a series of other
stipulations within the law that attempt to regularize the
status of workers employed through staffing agencies;
strengthen protections in the event of job dismissals; and
establish a framework for penalizing non-compliance with the
law.\23\
Despite strengthening formal legal protections for workers,
the ultimate extent of the law's effectiveness, especially
without an independent union system to monitor enforcement,
remains untested until the law takes effect. China's track
record for implementing existing labor protections is poor at
best. One government official has described weak implementation
as the root cause of China's labor problems.\24\ A series of
surveys on the enforcement of existing requirements to sign
labor contracts found that many enterprises fail to use
contracts, and that workers lacked knowledge of their right to
sign a contract.\25\ Even if the Labor Contract Law promotes
the creation of more formal contracts, however, the benefits of
such a development may have limited impact without adequate
measures to ensure that employers adhere to the terms of the
contracts.\26\
Ambiguities in the law amplify the challenges of
implementation. While the law does not explicitly require
employers and employees to enter into new contracts on January
1, 2008, neither does it say whether it will apply to existing
employment contracts that do not comply with the new law.\27\
The law requires workplaces that receive workers through
staffing agencies to provide ``benefits suited for the job''
but does not elaborate on this provision.\28\ The law allows
employers to cover their costs for employees' ``professional
technical training'' by requiring employees first to agree to a
set service period in exchange, but it provides no definition
of ``professional technical training'' or a method of valuing
service.\29\ Finally, the law does not specify whether it will
apply to employees (whether local or expatriate) of foreign
company representative offices. Because the law leaves many
details to be fleshed out through the issuance of supplemental
regulations and interpretations during implementation, its full
impact will remain unclear for some time. In the interim, media
reports indicate that some employers are dismissing workers now
in order to avoid increased safeguards against terminations
once the law enters into force.\30\
Non-Standard Workers
The new law attempts to address a gap in legal protection
for workers employed through staffing agencies, who have
labored without explicit legal guidelines governing various
aspects of their relationships with both staffing agencies and
worksites that hire through the agencies. The Labor Contract
Law provides that staffing firms fulfill the same function as
other employers under the law by signing contracts with workers
that detail the terms of employment. Compliance with the law
requires staffing firms to agree to fixed-term contracts of at
least two years and to pay each worker on a monthly basis
including for periods where the worker has not been dispatched
to an outside employer.\31\ Compliance also requires workplaces
that receive workers through staffing agencies to provide the
same wages as directly hired employees.\32\ The law also
stipulates that these workplaces provide overtime, benefits,
and incremental wage increases, though the law lacks details on
these requirements.\33\ In addition, workers may join a union
affiliated with either the staffing firm or the workplace to
which they are dispatched.\34\ Finally, the law mandates that
neither staffing firms nor workplaces that receive workers may
levy placement fees from workers, nor can the staffing firm
keep part of the worker's wages.\35\ The provisions expand on
more limited stipulations for staffing firms specified in the
law's draft form.\36\
The Labor Contract Law attempts to extend a modest new
protection for part-time employees by mandating that these
workers (defined as those who work no more than 4 hours a day
or 24 hours a week) not receive less than the local minimum
hourly wage.\37\ Under the 1994 Labor Law, part-time employees
had no such
protection, and in 2007, news sources in China reported that
fast food restaurants in Guangzhou paid part-timers 40 percent
less than the minimum wage.\38\ In addition, the law mandates
that part-time employees be paid no later than every 15
days.\39\ However, the Labor Contract Law does not require
employers to sign written contracts with part-time workers, and
allows employers to terminate part-time workers without notice
or termination compensation.\40\ The law's prospects for
improving conditions for non-standard workers, therefore, are
diminished not only by problems with implementation, but also
by certain weaknesses in the law itself.
Terminations
The Labor Contract Law stipulates a series of guidelines
governing workforce reductions. Where employers reduce their
workforce by 20 or more employees--a reduction from the 50 or
more workers earlier specified in the drafting process\41\--or
if they terminate employment for fewer than 20 workers but by
an amount that comprises 10 percent or more of the workforce,
the union or all employees must receive 30 days' advance
notice. In addition, in order to comply with the law, the
employer must explain the staff reduction and ``listen to the
opinions of the trade union or the employees.'' \42\ Such
provisions reinforce the tendency that runs throughout the new
law requiring notification to workers and the union, rather
than negotiations, over major issues such as mass layoffs. In
the event of layoffs, the law stipulates giving priority to
retaining workers with open-ended contracts or long periods of
employment under fixed-term contracts, as well as workers who
are the sole wage earner in the family and must support
children or elderly family members.\43\ The law also forbids
laying off several categories of workers, including workers
near retirement, pregnant and postpartum workers, and workers
who have sustained on-the-job injuries or occupational
diseases, or are in the process of having such a disease
diagnosed.\44\ Where employers end a contract unilaterally,
they must notify the union and allow the union to intervene
where the termination violates the law or contractual
terms.\45\
The law also specifies conditions under which employers
must give severance pay to employees. Severance provisions
apply to categories of workers including those laid off and
workers who terminate their contracts because of illegal
practices on the part of the employer.\46\ The law specifies a
formula for determining severance based on one month of wages
for each year worked; workers employed for fewer than six
months receive half of the monthly wage.\47\ It also specifies
severance pay caps for high-wage workers.\48\
Enforcement Mechanisms and Legal Liability
The Labor Contract Law includes a series of provisions to
monitor enforcement of the law and penalize non-compliance. It
assigns local labor officials at the county level and above
with responsibility for overseeing implementation, including
the enforcement of specific contractual terms.\49\ The law also
empowers authorities from other offices, such as construction
and health officials, to monitor aspects of the law within the
scope of their jurisdiction.\50\ A report from the State
Council Research Office issued in 2006 noted, however, a
``serious shortage'' of supervisors to enforce implementation
of labor laws, drawing into question the effectiveness of
provisions in the Labor Contract Law.\51\
Workers who allege an infringement of their rights may
appeal to government authorities to address the matter, apply
for arbitration, or initiate a lawsuit.\52\ A section on legal
liability requires employers who fail to sign a contract after
one month of employing a worker to pay double wages.\53\ It
also articulates a series of other remedies for workers and
stipulates additional penalties for employers, staffing firms,
and labor officials who violate the law.\54\ One provision
holds workers responsible for damages where they cause loss to
an employer for ending a labor contract in violation of the law
or breaching confidentiality and competition agreements.\55\
Collective Bargaining
The Labor Contract Law includes six articles that specify
guidelines for negotiating ``collective contracts,'' \56\ but
it does not provide for collective bargaining. Collective
contracting provisions have appeared in Chinese law for many
years.\57\ The limited scope of the collective contracting
process in the new law, including the lack of independent union
participation, however, prevents it from translating into a
meaningful mechanism for collective bargaining. Some leading
Chinese experts argue that the meaning of the phrase
``collective agreements'' is rendered meaningless due to the
ACFTU's historic record of never having negotiated genuine
collective bargaining agreements.\58\ Many provisions in the
Labor Contract Law appear to be based on the presumption that
workers will negotiate individual contracts. The final draft of
the Labor Contract Law includes a provision that permits
workers representatives to negotiate collective contracts where
no ACFTU branch exists in the workplace, but such negotiations
are ``under the guidance of the ACFTU at the next higher
level.'' \59\ As three labor experts have noted, however, ``the
idea of [ACFTU officials] representing and protecting the
legitimate rights and interests of their members in opposition
to those of the employer is something unfamiliar, if not
totally alien.'' \60\ To date, the terms of collective
contracts have been limited. One study of collective contracts
observed that a typical contract lacks ``detailed specification
of the terms and conditions of labour, and often does not
include reference to many of the benefits that are in fact
provided by the enterprise.'' \61\ In addition, workers' input
in the process is limited, and employers have concluded
collective contracts through model agreements rather than
through a process of negotiation with employees.\62\ At the
same time, use of the mechanism is widespread. According to the
ACFTU, as of September 2006, 862,000 collective contracts
covering 110 million workers had been signed, representing a
14.3 percent
increase since 2005 in the number of contracts signed and an
8.3 percent increase in number of workers covered.\63\
Labor Disputes
The Labor Contract Law includes default provisions designed
to function in the event of dispute over contractual terms.
Workers and employers may renegotiate a contract in the event
specific terms are not clearly specified in a contract, and
where negotiations fail, the terms of the collective contract
or ``pertinent regulations of the state'' apply.\64\ The law
also provides for the role of a labor arbitration board or
people's court in the event the validity of a contract is
disputed.\65\ In addition, the labor union may apply for
arbitration or initiate a lawsuit in the event of dispute over
a collective contract.\66\ Individual workers may do the same
where their rights have been violated, and the law mandates
that the labor union supply ``support and help'' in such
cases.\67\ The union's divided loyalties in practice, however,
call into questions the efficacy of these provisions. In
addition, the high cost of arbitration fees has the practical
effect of discouraging workers from pursuing this avenue of
dispute resolution.\68\ Moreover, the law does not specify
whether workers must first enter mediation before pursuing
arbitration or legal suits, the first stage of labor dispute
resolution listed in the 1994 Labor Law.\69\ Unlike the 1994
Labor Law, it does not specify that workers must first exhaust
arbitration options
before pursuing a legal suit.\70\
In addition, broader legislative developments may
ultimately deny workers a full range of options for resolving
labor disputes. A new draft Law on Labor Dispute Mediation and
Arbitration placed before the NPC Standing Committee on August
26, 2007, if passed, would limit the role of courts in labor
dispute resolution. According to a vice-chair of the
Legislative Affairs Commission of the NPC Standing Committee,
as cited in a Xinhua article, ``The draft bill is for
strengthening mediation and improving arbitration so as to help
fairly solve labor disputes without going to court and thus
safeguard employee's legitimate rights and promote social
harmony'' [emphasis added].\71\ The draft allows companies to
establish labor mediation committees in-house ``so as to solve
disputes at [the] grassroots level,'' according to the Xinhua
article, and specifies that the mediation committees may
consist only of management and employees.\72\ Taken as a whole,
China's emerging national labor law regime, billed as both
strengthening worker rights and grassroots dispute resolution,
appears equally intended to make sure that disputes do not
enter legal channels that lead to the central government.
Whether this represents deliberate local empowerment as part of
a measured long-term strategy to induce grassroots legal
development, a strategy of crisis localization and insulation
for the center, or some combination, remains an open question.
Criticism and Support for the Labor Contract Law
Observers have been divided in their evaluations of the
Labor Contract Law. While noting limitations for enforcing
workers rights in practice, some worker rights organizations
have expressed support for the law's role in strengthening
protections for workers. For example, the China Labour
Bulletin, directed by Hong Kong labor activist Han Dongfang,
describes the new law as ``a laudable attempt to protect the
rights of individual workers'' in its weekly publication but
contends that workers need freedom to join unions, not just the
ACFTU, and to freely elect their own representatives who would
have the power to negotiate with management for collective
bargaining agreements. It also expressed concerns about
protections in earlier drafts omitted from the final
version.\73\
Businesses and business associations have had mixed
reactions to the new law. Some multi-national companies raised
objections to the law during the drafting process because of
provisions perceived as impediments to employers, and analysts
have drawn attention to new requirements and extra costs the
law may impose on foreign firms.\74\
U.S. and European multi-national companies and their
representative associations commented upon or urged revisions
to the law after publication of a draft version in spring 2006
and continuing through the next year.\75\ The American Chamber
of Commerce in the People's Republic of China ``called several
meetings of its members and formed a team to carefully study
and discuss the draft'' and prepared a set of comments as part
of the NPC's formal public process of soliciting opinions.\76\
Some foreign corporations and their associations endorsed
revisions that would weaken some of the formal protections
written into draft versions of the law, according to business
association, media, and other sources.\77\ Among the aspects of
the drafts that concerned these companies were clauses on
hiring and termination procedures, layoffs, employee
probationary periods, the status of temporary workers, the
power of the official trade union, severance pay provisions,
and employee training repayment.\78\ The U.S.-China Business
Council contended that limitations on the use of temporary
employees would prove ``prohibitively expensive'' for
businesses. \79\ NGO sources report that some business
organizations threatened to withdraw manufacturing from
China.\80\
In its comments on the draft law publicized in March 2006,
the American Chamber of Commerce in the People's Republic of
China cautioned against ``impos[ing] additional and unrealistic
obligations on employers'' against the backdrop of poor
implementation of existing labor laws, stating that the law
instead ``should leave enough latitude for local governments to
make rules according to local needs.'' \81\ The European
Chamber of Commerce expressed support for the final version of
the law, after initial criticism, and urged the Chinese
government to focus on adequate implementation of the law.\82\
In answer to earlier complaints by foreign investors that
the new law would have a detrimental effect on foreign
investment, the director of the law department of the ACFTU
stated that the Labor Contract Law ``not only protects workers'
interests and rights, but also equally protects employers.''
\83\ According to one Chinese government official, ``If there
were some bias, it would be in favor of foreign investors
because local governments have great tolerance for them in
order to attract and retain investment.'' \84\
OTHER LEGISLATIVE DEVELOPMENTS
In August 2007, the Standing Committee of the National
People's Congress adopted an Employment Promotion Law,
effective January 1, 2008, that stipulates measures relating to
the promotion of employment growth and equal access to
employment.\85\ In addition to containing provisions aimed at
prohibiting discrimination based on factors including
ethnicity, race, sex, and religious belief,\86\ the law
addresses the equal right to work for women and ethnic
minorities;\87\ specifies disabled people's right to work;\88\
stipulates that rural workers' access to work should ``be equal
to'' urban workers;\89\ and forbids employers from refusing to
hire carriers of infectious diseases.\90\ The law also allows
workers to initiate lawsuits in the event of
discrimination.\91\ A survey publicized in June 2007 found
widespread discrimination among job-seekers, especially
physically disabled people, HIV/AIDS and hepatitis B carriers,
and migrant workers. Women reported discrimination related to
their entitlement to maternity benefits.\92\ [See Section II--
Status of Women for more information.]
If properly implemented, the law may offer support for
legal
advocates pursuing employment discrimination cases, but other
aspects of the law raise potential difficulties. One article
assigns the state to spur workers to develop a ``proper''
mentality in job selections.\93\ Another provision carves out a
role for Party-controlled
organizations like the Communist Youth League to aid in
implementation of the law, which may dampen the role of civil
society groups that promote implementation in ways that
challenge Party policy.\94\ Potentially beneficial safeguards
also face barriers due to a lack of clearly defined terms. A
provision to promote the employment of workers with
``employment hardship,'' for example, defines this category of
workers in general terms but leaves precise details to local
authorities, introducing the possibility of uneven protections
that reduce the law's overall impact.\95\ In addition, the law
specifies the establishment of an unemployment insurance
system, but provides no extensive details on
implementation.\96\
CONDITIONS FOR CHINESE WORKERS
Wages
The 1994 Labor Law guarantees minimum wages for workers,
and assigns local governments to set wage standards for each
region.\97\ The new Labor Contract Law improves formal
monitoring requirements to verify workers receive minimum
wages. Article 74 requires local labor bureaus to monitor labor
practices to ensure rates adhere to minimum wage standards.
Article 85 imposes legal liability on employers who pay rates
below minimum wage. In addition, Article 72 guarantees minimum
hourly wages for part-time workers.\98\
The government reported progress in 2006 in establishing
hourly minimum wage standards in most of its provinces.
According to a report from the Ministry of Labor and Social
Security (MOLSS) released in October 2006, 29 of China's 31
provincial-level areas had established hourly minimum wage
standards, compared to 23 provinces in 2005. In addition, the
report found that all 31 provincial-level areas maintained
monthly minimum wage standards. The
report shows greater local government compliance in 2006 than
in 2005 with requirements to review monthly minimum wage
standards every two years.\99\ Local government discretion to
set minimum wages has resulted in wide variances across
provinces.\100\ In 2006, the All-China Federation of Trade
Unions reportedly urged provincial-level governments to
increase minimum wages.\101\
Illegal labor practices have undermined minimum wage
guarantees. In an investigation of working conditions for
migrant workers in China, Amnesty International noted that
``wages of internal
migrant workers are effectively reduced by management through
inadequate pay for compulsory overtime, fines, unpaid wages,
and other methods.'' \102\ The investigation found that some
factories' fines for tardiness--calculated for each minute a
worker is late--could constitute a major reduction in a
worker's daily salary.\103\ (See the discussions on ``wage
arrearages'' and ``working hours,'' below, for additional
information.)
China's leaders have expressed concerns over the growing
income gap between rural and urban workers, and between earners
at the top of the income ladder and those at the bottom. In
July 2006, the government announced it would institute reforms
aimed at cutting the wealth gap to promote a ``harmonious''
society and ``improve the socialist market economy,'' with
focus on increasing the middle class and improving wages of
low-level government employees.\104\ Party officials and
commentators have not yet settled on a firm opinion of the
wealth gap problem. In November 2006, Ministry of Finance
official Wang Bao'an outlined a new wage plan aimed at limiting
the rate of wage increases at the high end of the scale;
standardizing income subsidies; stabilizing the wages of
middle-income earners; and raising the income of low-wage
earners.\105\ A commentary reprinted in the China Economic
Daily, however, argued that ``the existence of a high-income
group is inevitable in a market economy,'' and argued against
``robbing the rich to give to the poor.'' \106\ Government
official Qiu Xiaoping, of the Ministry of Labor and Social
Security, agreed that the government should not intervene in
setting wages in a socialist market economy where a ``salary is
the market price of labor.'' \107\
Wage Arrearages
Wage arrearages remains a serious problem, especially for
migrant workers. In June 2006, the Ministry of Communications,
which oversees China's transportation sector, issued a circular
ordering provincial-level departments to finish resolving
migrant workers' claims for unpaid wages from work on
transportation projects by the end of 2006. The Ministry
circular responds to a 2004 State Council decree to resolve all
migrant worker wage arrears that have resulted from unpaid debt
on government projects.\108\ Government efforts have helped
lower the amount of outstanding unpaid wages, but progress in
this area remains limited. Employers in the construction sector
still owe workers a reported 10 billion yuan (US$1.2
billion).\109\ An inspection in Gansu province found that
companies owed 130 million yuan (US$16.6 million) in back wages
to 130,000 migrant workers, mainly in the construction and
restaurant industries.\110\
Some local governments have issued legal guidance and taken
other steps to address wage arrearages. Trial legal measures
implemented in Qinghai province in 2006 require construction
companies to set aside and deposit wage funds before projects
begin, to ensure that workers will be paid when the project is
completed. The measures punish enterprises that fail to deposit
sufficient funds, that do not make their deposits in a timely
manner, or that provide false contract information, and allow
authorities to bar non-compliant firms from participating in
the construction market.\111\ In Guangdong province,
authorities had barred 30 enterprises for failing to pay
employee wages as of June 2006. Though the government had given
the companies previous warnings and implemented other punitive
measures, the companies failed to remedy an outstanding debt of
over 20 million yuan (US$2.5 million) to over 8,000
workers.\112\
Subcontracting practices within industry exacerbate the
problem of wage arrearages. When investors and developers
default on their payments to construction companies, workers at
the end of the chain of labor subcontractors lack the means to
recover wages from the original defaulters. Subcontractors,
including companies that operate illegally, neglect their own
duties to pay laborers and leave workers without any direct
avenue to demand their salaries. In some cases, subcontractors
will pay partial wages to force workers to stay on site to
finish construction projects.\113\
Wage arrearages have resulted in protests and
demonstrations by workers, and some Chinese employers have
responding by hiring thugs or gangsters to drive off the
protesters. In July 2007, a group of armed gangsters beat up
300 migrant workers who had gone on strike in Guangdong
province to collect four months of back pay. The subcontractor
construction company claimed that it could not pay the workers
because it had not been paid by the contractor.\114\
Workers who try to take legal measures to recover lost
wages face prohibitive expenses and limited possibilities of
recovering wages, even where adjudicators decide in their
favor.\115\ Despite these obstacles, there has been a steady
increase in the number of workers who turn to labor arbitration
to settle their disputes with employers.\116\ In addition to
wage arrearages, sources of disputes have included illegal and
improperly compensated overtime and failure to adhere to labor
contracts.\117\
Working Hours
China's labor law mandates a maximum 8-hour work day and
44-hour average work week, but compliance with these standards
is weak.\118\ One specialist in China's compliance practices
has estimated that work weeks above 80 hours are common in the
apparel industry and other export sectors.\119\ A study of
migrant workers in southern China found that workers were
subject to forced overtime to upwards of 16 hours a day. The
report noted that employers dodged paying overtime rates by
compensating workers on a piece-rate basis with quotas high
enough to avoid requirements to pay overtime wages. Workers who
failed to comply with overtime requirements or who were late
faced fines.\120\
Suppliers in China avoid exposing themselves to claims of
requiring illegal, long hours by hiring firms that help them
set up double booking systems designed to deceive foreign
importers who aim to adhere to Chinese rules and regulations. A
detailed account of the practice found that these firms not
only help suppliers set up fake books for audit, but also coach
managers and employees on answers to give the auditors. One
specialist has estimated that only 5 percent of Chinese
suppliers comply with overtime regulations, and 20 percent
adhere to wage regulations.\121\
Benefits
The routine denial of legally guaranteed job benefits to
workers by some employers is a serious problem in China. Gaps
in social security and labor insurance coverage remain
widespread. Though the government has reported that 100 million
workers had unemployment insurance as of November 2006, this
figure accounted for only one-seventh of the total 760 million
workers in the country.\122\ An International Labor
Organization study found that enterprises dodge requirements to
provide contributions for old-age insurance by misreporting the
number of employees and wages, as well as by keeping workers in
irregular employment positions.\123\ In addition to failing to
secure social security safeguards, employers also have denied
workers benefits ranging from paid vacations to sick
leave.\124\ Workers have described being fined for taking sick
days.\125\
Women workers face additional obstacles, as employers
withhold maternity leave and related benefits.\126\ A 2006
survey of women migrant workers conducted by the All-China
Women's Federation found that only 6.7 percent of surveyed
workers had maternity insurance. Of the 36.4 percent who
reported that they were allowed to take maternity leave, 64.5
percent said this leave was unpaid.\127\ The survey also found
that only 23.8 percent have medical insurance and 19.1 percent
have occupational insurance.\128\ [See Section II--Status of
Women for more information.]
Systemic failings of local governance exacerbate
shortcomings in the provision of social security benefits, as
local governments bear responsibility for providing coverage
for retirement, illness or injury, occupational injuries,
joblessness, and childbirth.\129\ After local mismanagement of
the pension system in Shanghai, central government departments
issued a series of legal guidance in 2006 to increase oversight
of fund management.\130\ Li Jinhua, auditor-general of the
National Audit Office, pledged in 2007 to stop the misuse of
pension funds and said local governments would be held
responsible for repaying misused funds out of their own
budgets.\131\ Despite these measures, fundamental flaws within
the system persist. As one overseas media source observed,
``The party has talked for decades about building a social
safety net, yet as the working population ages the government
isn't investing nearly enough to head off looming crises in
health care, education, and pensions.'' \132\ Chinese officials
reported in 2006 that only 6 percent of the population
benefited from the existing social insurance system and pledged
to enlarge participation by 2020.\133\
In 2006, the government announced it would take
``compulsory measures'' to promote employer participation in
on-the-job injury insurance for migrant workers, expanding
coverage to over 140 million people by the year 2010. By the
end of July 2006, 18.71 million migrant workers nationwide were
covered by the insurance, while 87 million workers overall had
such insurance as of April 2006.\134\
WORKER SAFETY
Over the last year, the Chinese government enhanced its
efforts to enforce work safety laws by conducting national
inspections, promoting accident prevention through safety
campaigns, enforcing the closure of small, illegal mines, and
actively seeking international cooperation. According to latest
statistics provided by the Chinese government, mine fatalities
decreased by 20.1 percent in 2006 compared to 2005; fatalities
during the first eight months of 2007 also decreased by 15.7
percent compared to 2006, according to latest statistics
provided by the government.\135\
Industrial Accidents and Occupational Health
Industrial injuries and deaths remain widespread in China,
despite reported decreases in the number of workplace deaths
and accidents.\136\ In February 2006, the State Administration
for Workplace Safety (SAWS) closed nearly 36,000 businesses
that had failed to obtain safety licenses by the end of
2005.\137\ The government amended the Criminal Law in June 2006
to broaden punishments for work safety violations. The
amendments included new penalties for ``responsible'' personnel
who hinder rescue efforts by covering up or failing to report
accidents, though the amendments do not clarify how
responsibility for reporting such incidents is determined.\138\
In August 2006, the government pledged over US$50 billion to
lower workplace accidents.\139\
China has high rates of occupational disease and injuries.
As of 2006, official statistics indicated that 440,000 workers
suffered from the respiratory condition pneumonoconiosis, as a
result of exposure to toxic particles. Unofficial estimates
place the number as high as 5 million.\140\ In 2006, government
officials estimated the total number of workers with
occupational illnesses may be as high as 700 million.\141\
Workers have reported that workplaces fail to educate them on
occupational hazards or provide adequate safety equipment.\142\
Coal Mine Accidents
China's coal mining sector continues to have high accident
and death rates, and without independent worker organizations,
coal miners are limited in their ability to promote safer
working conditions. Though government statistics indicate a
decline in deaths in coal mine disasters, official statistics
are unreliable, and the reported death rate remains high
nonetheless. In 2006, officials indicated that 4,746 workers
died in coal mine accidents, representing a decline of 20
percent from 2005.\143\ Unofficial estimates have placed the
number as high as 20,000, not including the number of workers
who die from mining-related diseases.\144\ The central
government issued a series of legal guidance in 2006 aimed at
addressing coal mine safety. Interim provisions issued in
November 2006, for example, stipulate penalties for failing to
correct hidden dangers that result in an accident; concealing,
misreporting, or providing a delayed report of an accident; and
allowing mines with
revoked licenses to continue operations.\145\
Despite measures to penalize violations of coal mine
safety, punishment of coal mine officials is limited in
practice. In a Supreme People's Procuratorate investigation of
officials charged for their involvement in mining disasters,
95.6 percent were not given any punishment or were given
suspended sentences.\146\ In one case, where 56 miners died in
a flood at a coal mine in the Xinjiang Uighur Autonomous
Region, public outrage resulted in a retrial of the township
chief, whose sentence was increased from one year to 12.\147\
Officials and mine operators have thwarted efforts to
reconstruct evidence from coal mine disasters. After a series
of accidents in April 2007, China's chief safety officer, SAWS
head Li Yizhong, commented that mine operators ``sabotaged the
(accident) scenes, destroyed incriminating evidence and removed
the bodies.'' \148\
China's coal is the source of its huge economic growth rate
and some of its worst corruption.\149\ Weak central government
control over local governments has forced central authorities
to postpone closing many small mines until 2010. These mines
are the most dangerous ones, but are highly lucrative for local
owners. Mine owners raise production levels above the legal
limit, and if accidents happen, bribe local officials to ignore
their practices. Overseas media reported that mine owners have
sent corpses to other provinces to avoid requirements to report
accidents with more than three deaths.\150\
MIGRANT WORKERS
Chinese migrants face numerous obstacles in the protection
of their labor rights, and employers have exploited migrant
workers' uprooted status to deny them fair working conditions.
A report from the State Council Research Office found that
wages for migrant workers are ``universally low;'' workplaces
lack ``the most basic labor protection[s];'' migrant workers
``engage in overly intensive labor for excessively long
hours,'' without a guaranteed right to rest; and migrant
workers are ``unable to obtain employment rights and public
employment services'' on a par with permanent urban
residents.\151\ Migrant workers are reportedly denied a total
of 100 billion yuan in back pay, with 94 percent of migrant
workers in the construction sector not paid on time.\152\ The
central government has enacted a series of decrees to ease
restrictions for
migrant workers, but the measures lack sufficient legal force
and sustainability at the local government level to ensure
consistent implementation. [See Section II--Freedom of
Residency and Travel for more information about migrant
workers.]
Thirty-one Chinese city governments agreed to a plan in
2007 to set up a network of legal aid centers among the cities
to improve legal access for migrant workers and ensure
accountability among legal aid providers. Called the Chongqing
Pact, the agreement obliges legal aid centers in the network to
help migrant workers with issues such as labor disputes and
work-related injuries, regardless of a worker's residency
status. It also requires legal aid centers in a migrant
worker's original place of residency to assist in the
process.\153\ The program may be designed in part to avoid the
demonstrations, and sometimes violence, that break out when
workers are not paid.
Chinese officials reported in June 2007 on a draft plan to
change its pension system to address migrant workers' needs.
Under the proposed plan, those with steady employment would
join current pension schemes, and those without a permanent
place of employment would enter a new program designed
specifically for that population. Under the proposed system,
employers and employees would make mandatory contributions to
the fund that would be shifted to accounts in the migrants'
home towns but that would
retain portability as migrants change jobs and relocate.\154\ A
2006 investigation on old-age pensions by the International
Labor Organization identified an existing lack of portability
of pension funds as one of the ``major barriers'' to coverage
for migrants.\155\
CHILD LABOR
Child labor remains a persistent problem within China,
despite legal measures to prohibit the practice. As a member of
the International Labor Organization (ILO), China has ratified
the two core conventions on the elimination of child
labor.\156\ China's Labor Law and related legislation prohibit
the employment of minors under 16,\157\ and national legal
provisions prohibiting child labor stipulate a series of fines
for employing children.\158\ Under the Criminal Law, employers
and supervisors face prison sentences of up to seven years for
forcing children to work under conditions of extreme
danger.\159\ Systemic problems in enforcement, however, have
dulled the effects of these legal measures, though the overall
extent of child labor in China is unclear due to the government
categorizing data on the matter as ``highly secret.'' \160\ A
report on child labor in China found that child laborers
generally work in low-skill service sectors as well as small
workshops and businesses, including textile, toy, and shoe
manufacturing enterprises.\161\ It noted that many under-age
laborers are in their teens, typically ranging from 13 to 15
years old, a phenomenon exacerbated by problems in the
education system and labor shortages of adult workers.\162\
Children in detention facilities also have been subjected to
forced labor.\163\
Events from the past year underscore the government's
inability to prevent child labor. Underage workers were among
the forced laborers found working in brick kiln mines in 2007,
highlighting the existence of what the ILO terms the ``worst
forms of child labor.'' \164\ [See the subsection on ``Forced
Labor,'' below, for more information on forced labor in brick
kilns.] A company that produces Olympics-related products
admitted in 2007 that children as young as 12 years old had
worked in the factory.\165\
Although the Chinese government has condemned the use of
child labor and pledged to take stronger measures to combat
it,\166\ it continues to actively endorse other forms of child
labor under the guise of work-study activities. Under work-
study programs implemented in various parts of China, children
as young as elementary school students pick crops and engage in
other physical labor. In the Xinjiang Uighur Autonomous Region
(XUAR), for example, some 800,000 students began their 2006
academic year by picking cotton in school-organized work-study
programs, while elementary school students in some parts of the
XUAR were forced to pick hops. The XUAR government issued legal
guidance that year to outline the contours of this labor
system, stating that priority should be placed on using labor
revenue to buy accident insurance for students and liability
insurance for schools. Reports from the region indicated that
in recent years students had been made to work in 12-hour
shifts and suffered injuries from dangerous working conditions
and sexual abuse from adult laborers. [See Section II--Ethnic
Minority Rights for more information on conditions in the
XUAR.] Also in 2006, over 10,000 students in the fourth grade
and higher in a city in Gansu province were made to harvest
corn.\167\
Central government legislation allows this form of child
labor. National provisions prohibiting child labor provide that
``education practice labor'' and vocational skills training
labor organized by schools and other educational and vocational
institutes do not constitute the use of child labor when such
activities do not adversely affect the safety and health of the
students.\168\ The Education Law supports schools that
establish work-study and other programs, provided that the
programs do not negatively affect normal studies.\169\ A
nationwide regulation on work-study programs for elementary and
secondary school students outlines the general terms of such
programs, which it says are meant to cultivate morals,
contribute to production outputs, and generate resources for
improving schools.\170\ These provisions contravene China's
obligations as a Member State to ILO conventions prohibiting
child labor.\171\ In 2006, the ILO's Committee of Experts on
the Applications of Conventions and Recommendations
``expresse[d] . . . concern at the situation of children under
18 years performing forced labour not only in the framework of
re-educational and reformative measures, but also in regular
work programmes at school.'' \172\
Beyond the parameters of government-approved work study
programs, some teachers have used their position of authority
to induce students into exploitative working conditions in
factories far from home. In 2006, for example, a teacher in
Henan province recruited 84 female students from her school to
work in a can factory in Zhejiang province. Students labored
under exploitative conditions until some escaped. Authorities
rescued the remaining students.\173\ The same year, teachers at
a school in Shaanxi province arranged for approximately 600
students, including under-age minors, to do ``work-study'' in
an electronics factory in Guangdong province, where students
were reported to work up to 14 hours a day without full
wages.\174\
FORCED LABOR
In May and June 2007, Chinese media and Internet activists
uncovered a massive network of forced labor in brick kilns in
Shanxi and Henan provinces. Reports indicated that people
forced to work in the kilns included children and mentally
challenged adults kidnapped by human traffickers and sold to
the kilns, where they were beaten, denied food, and forced to
work up to 20 hours per day. In other cases, workers were lured
to the kilns through promises of high salaries.\175\ One father
described his son's condition when he found him:
My son was totally dumb, not even knowing how to cry,
or to scream or to call out ``father''[ . . .] He was
in rags and had wounds all over his body. Within three
months he had lost over [22 pounds].\176\
Chinese officials announced in August 2007 that a
nationwide campaign led to the rescue of 1,340 enslaved
workers,\177\ but government reports of the size and scope of
the problem appeared to conflict with accounts by citizens.
Parents from Henan province, for example, said that up to 1,000
children were forced into labor in Shanxi province, but Shanxi
provincial vice-governor Xue Yanzhong said that authorities had
inspected 4,861 brick kilns in the province and identified only
15 child workers. According to Xue, only 17 of the brick kilns
inspected used forced labor.\178\
The reports of forced labor reveal a longstanding
phenomenon, according to an editorial in the Chinese newspaper
Southern Weekly:
The dirty slave trade has been thriving for a long time
but the local government didn't take any action. It's
become an actual accomplice. The scandal is so massive
and catastrophic that it poses a serious threat to
public security.\179\
According to a deputy director from the Ministry of Public
Security, official knowledge of the forced labor system goes
back as far as 2004. At that time, police discovered child
labor being used in brick kilns in Henan province after a
parent asked for help in finding his child. The deputy director
considered the problem ``solved . . . under the instructions of
our leaders.'' A kiln contractor reported that many kiln
operators received advance notice of the
inspections from local police and hid enslaved laborers during
inspections. Kilns were only closed if they had no business
licenses or did not adhere to safety and environmental
standards, not because they were using forced labor.\180\
By the middle of July 2007, 29 mine supervisors and owners
received prison sentences for their involvement in forced
labor. Of those convicted, a foreman who beat a mentally
disabled worker to death was given the death penalty. The owner
of this kiln, a son of a local Communist Party official,
received a sentence of nine years. Other defendants were given
prison terms from two years to life in prison.\181\ Critics
have complained that these few convicted criminals were being
used to deflect attention from the involvement of Party
officials.\182\ By August, no senior officials had been
punished and only 95 low ranking officials had been
reprimanded.\183\ [For information regarding Chinese officials'
disclosure of information on the forced labor scandal see
Section II--Freedom of Expression.]
In June, the All-China Lawyers Association asked the
National People's Congress Standing Committee to introduce new
legislation making slavery a criminal charge. The Association
noted that current law applies only to legally recognized
employers and does not apply to individuals or illegal
workplaces.\184\
U.S.-CHINA BILATERAL COOPERATION
The U.S. Department of Labor and two Chinese government
agencies continued to conduct cooperative activities during
2007 on wage and hour laws, occupational safety and health,
mine safety, and pension oversight. The two countries renewed
Letters of Understanding related to these areas and pledged to
continue the
cooperative activities for four more years. In addition, two
new cooperative agreements were signed in the areas of
unemployment insurance program administration and labor
statistics.\185\
Freedom of Expression
INTRODUCTION
The Commission's previous recommendations addressed three
areas where China's citizens do not enjoy the right to free
expression. First, the Commission has noted that restrictions
on the free flow of information threaten the well-being of
Chinese citizens and, increasingly, citizens around the world.
In its 2003 Annual Report, the Commission noted that China's
news media restrictions prevented citizens from being fully
informed during the 2003 SARS crisis. After China began
considering a proposal in 2006 to further limit media coverage
during public emergencies, the Commission recommended in its
2006 Annual Report that the President and Congress urge China's
leaders to recognize the importance of complete transparency in
the administration of public health, and the importance of an
unimpeded press in providing critical information to the public
in a timely manner. Recent international concern over the
global health impacts of food, drugs, consumer products,
disease outbreaks, and pollution originating from China
underscore the importance of the free flow of information.
Over the last five years, public access to government
information, at least on paper, has improved, but major
obstacles to government transparency remain, reflecting the
Communist Party's overarching concern that it maintain control
over the flow of information. In 2007, the government passed
China's first national ``freedom of information'' regulation,
but it remains subject to a ``state secrets''
exception that gives the government broad latitude to withhold
information. The Party and government continue to maintain
tight control over the press, and the prospects for a free
press remain dim. While foreign reporters in theory were
granted some increased press freedom in accordance with
promises China made in 2001 as part of its successful bid to
host the 2008 Summer Olympic Games, China continues to use
upcoming important events such as the Party's 17th Congress in
October 2007, and corruption among Chinese reporters, as a
pretext for increased restrictions on domestic media. The lack
of a free press to monitor the government leaves citizens
poorly informed about major problems and unable to fully
investigate the root causes of such problems and the extent to
which the Party or the government should be held accountable.
Second, previous Commission reports highlighted China's
pervasive censorship of the Internet and other electronic
media. In its Annual Reports from 2002 to 2006, the Commission
recommended that the President and Congress urge the Chinese
government to stop blocking access to foreign news broadcasts
and Web sites, and allow its citizens freer access to
information on the Internet, particularly information
concerning the rights of Chinese citizens to free speech and a
free press. The Commission has also recommended that the
President and Congress urge China to cease detaining
journalists and writers, many of whom are punished for posting
essays critical of the Chinese government on the Internet.
Over the last five years, the Party and government have
continued to emphasize management and control over the
Internet. They have done so by requiring Web sites to be
licensed, blocking access to politically sensitive information
on the Internet, and detaining citizens who criticize the
government online. In 2007, Hu Jintao called for ``purifying''
the Internet, saying ``the stability of the state'' depended on
the Party taking full advantage of and successfully controlling
the Internet. The Internet poses a daunting challenge for the
Party. In 2007, citizen activists used the Internet and cell
phones to raise public awareness about cases involving slave
labor and the construction of a hazardous chemical plant,
driving the reporting agendas of the state-controlled press and
forcing the government to address these problems. Their
success, however, reflects the creativity of China's citizenry
in evading censors and the difficulty in trying to monitor
China's growing online environment, rather than any government
policy of liberalization. Furthermore, journalists and writers
who criticize the government online continue to face
imprisonment for such crimes as ``inciting subversion.''
Third, the Commission's previous reports have noted China's
prior restraints on publishing, which prevent citizens from
freely expressing ideas and opinions. In its Annual Reports
from 2003 to 2006, the Commission recommended that the
President and Congress urge the Chinese government to eliminate
prior restraints on publishing. Over the last five years,
public officials in China have maintained prior restraints on
publishing and continue to ban and confiscate books and
magazines that do not conform to the Party's political
requirements. This past year, publication and propaganda
officials stepped up their efforts to clean up the publishing
industry in preparation for the Party's 17th Congress to be
held in October 2007.
FREE FLOW OF INFORMATION
Improvements and Obstacles to Government Transparency
The Commission notes that over the last five years, the
Chinese government has made progress in increasing public
access to government sources of information. The Communist
Party and State Council have directed all levels of government
to increase transparency.\1\ In its 2003 Annual Report, the
Commission noted that most provinces and major cities had set
up detailed government Web sites.\2\ By March 2007, 86 percent
of all government agencies had official Web sites.\3\ Many of
the Web sites provide detailed and substantive information.\4\
In addition, by the end of 2006, most central government
institutions and all provinces, autonomous regions, centrally
administered municipalities, and top-level courts had
established public spokesperson systems.\5\
Over the last five years, the government has also sought to
improve its ability to respond to public emergencies and make
information available to the public more quickly. The
government's slow response to the SARS disease outbreak in 2003
and to the Songhua River chemical spill in 2005 led to passage
of measures to prevent provincial and local officials from
covering up such incidents.\6\ The Regulation on the Handling
of Public Health Emergencies, for example, requires provincial
governments to report a public health emergency to central
officials within one hour and requires central officials, or
provincial governments who have received approval from central
officials, to release information in a timely manner.\7\
However, as the Commission noted in its 2003 and 2006 Annual
Reports, these reforms were not intended to relax the
government's control over the media or the free flow of
information to the general public.\8\ Rather, the goal was to
increase the flow of information to central authorities in
Beijing, control how the press reported on the matter, and
prevent private citizens from publishing opinions regarding the
government's handling of the crisis.
In April 2007, the State Council issued the Regulation on
the Public Disclosure of Government Information (Public
Disclosure Regulation), the first national ``freedom of
information'' regulation requiring all government agencies to
release important information to the public in a timely
manner.\9\ The new regulation, which takes effect on May 1,
2008, requires government agencies to timely disclose vital
information regarding the government's handling of issues that
have been at the forefront of controversy in recent years, such
as food, drug, and product safety, public health emergencies,
environmental protection, land expropriation, the sale of
state-owned property, and population planning.\10\ The
regulation also provides citizens, legal persons, and other
organizations with the right to request information from a
government agency and to file an administrative lawsuit to
appeal an agency's decision not to provide information.\11\ The
State Environmental Protection Administration subsequently
issued implementing measures in April mandating public
disclosure of information on China's environment.\12\ [See
Section II--Environment.]
The impact of these freedom of information regulations is
limited, however, by the presence of a ``state secrets''
exception that gives the government broad latitude to withhold
information from the public.\13\ This policy reflects the
continuing perception by the Party that relinquishing too much
control over the flow of information will cause ``social
instability'' and challenge the Party's supremacy. Chinese laws
and regulations provide lists of what may be deemed a state
secret, but these lists are broad and vague, encompassing
essentially all matters of public concern.\14\ For example,
information about China's environmental pollution that would
``reflect negatively on China's foreign affairs work'' is
considered a state secret.\15\ Legal scholars in China have
noted that the inclusion of a ``state secrets'' exception in
the Public Disclosure Regulation gives officials too much
discretion to withhold information.\16\ In addition, the Public
Disclosure Regulation's heavy penalties for officials who fail
to protect state secrets may encourage even less
transparency.\17\ Moreover, citizens and journalists have
encountered resistance from local officials when requesting
information under similar administrative rules already in place
in some Chinese cities. In June 2006, a Shanghai journalist
sued the Shanghai Municipal Planning Bureau under a similar
freedom of information regulation, but lost the case and was
fired from his job as a result.\18\ Some legal experts in China
have also questioned whether provisions in such regulations,
granting citizens the right to request information, would apply
to citizens acting in their role as journalists, an
interpretation that would severely limit the law's impact.\19\
The National People's Congress recently issued the
Emergency Response Law, which requires people's governments to
publicly disclose accurate and timely information regarding
emergencies.\20\ The law was issued in August 2007 and will
take effect on November 1, 2007. The Commission noted in its
2006 Annual Report that a draft of this law contained a
provision that would have imposed a heavy fine on domestic or
foreign media who reported on a public emergency without
government approval.\21\ The Commission noted that the
provision would have impeded the efficiency of the Global
Public Health Intelligence Network, an electronic surveillance
system used by the World Health Organization to monitor the
Internet for reports of communicable diseases and communicable
disease syndromes. In a positive step, the provision was
removed from the final version of the law.\22\ The law,
however, now contains a provision prohibiting the fabrication
and spread of ``false information.'' \23\ Media who violate
this provision may be shut down.\24\ This provision could have
a chilling effect on journalists who worry that the government
retains too much discretion to determine whether information is
false or not.\25\ In January 2006, for example, public
officials sentenced journalist Li Changqing to three years in
prison for violating a Criminal Law provision that prohibits
the ``intentional dissemination of terrorist information that
is knowingly fabricated to disturb public order,'' even though
Li's reporting on a dengue fever outbreak turned out to be
materially similar to the government's own accounts.\26\
Public officials have punished citizens for sharing second-
hand information over the Internet or cell phones, threatening
the free flow of information and forcing citizens to wait for
the government's official version of the ``truth'' before
discussing important public events. Commentators in China have
expressed concern over the government's liberal application of
Article 25 of the Public Security Administration Punishment
Law, which provides for the detention of citizens who spread
rumors with the intent to disturb public order.\27\ [See
Section II--Rights of Criminal Suspects and Defendants for more
information about this law.] For example, in July 2007,
officials in Jinan city, Shandong province, detained a resident
for noting in an online discussion that she had heard that
citizens had perished in heavy flooding that hit the city.\28\
The Supreme People's Court (SPC) has continued its campaign
to increase public access to court proceedings. As the
Commission noted in its 2003 Annual Report, the SPC has taken
steps to improve the quality and availability of judicial
decisions.\29\ In June 2007, the SPC issued several opinions
calling on courts to provide public access to all stages of the
trial process,\30\ and to make more judgments available in
publications and over the Internet.\31\ The opinions, however,
contain the ``state secrets'' exception, which courts have
commonly used to conduct politically charged trials behind
closed doors.\32\ [See Section II--Rights of Criminal Suspects
and Defendants for more information about these opinions.] In
addition, court officials concerned about media threats to
judicial independence have sought to limit media reporting of
court activities. In September 2006, top officials at the SPC
announced a policy prohibiting news media from interviewing
judges or court officials without government permission and
directing the media not to issue commentary on pending court
cases.\33\
NO FREE PRESS
China's restrictions on the press violate the right to
freedom of expression as provided for under international human
rights standards and China's Constitution. Both the
International Covenant on Civil and Political Rights\34\
(ICCPR) and the Universal Declaration on Human Rights\35\
(UDHR) guarantee the freedom to seek, receive, and impart
information, through any media, regardless of frontiers.
Article 35 of China's Constitution provides China's citizens
freedom of speech and the press.\36\ While this freedom is not
absolute, the ICCPR and UDHR provide that restrictions may be
imposed only to protect the following interests: national
security or public order, public health or morals, or the
rights or reputations of others. Furthermore, the restriction
must be prescribed by law and must not exceed the scope
necessary to protect a compelling interest.\37\ China restricts
the press for political and ideological reasons. Restrictions
such as directives from propaganda officials are not prescribed
by law because they are issued by a Communist Party entity,
rather than one of the parties authorized to pass legislation
under China's Legislation Law.
Party and Government Control Over Media
China's media could play an important role in helping
inform the public about important events but, as noted above,
recent laws and regulations dealing with government disclosure
and public emergencies limit this potential. A more fundamental
limitation, however, is the Party's continued control over all
media in China,
either directly or through its control over the government
agencies that regulate China's media. The Party exercises
direct control over the media through the Central Propaganda
Department (CPD). The CPD issues directives informing
publishers and editors what stories can and cannot be covered.
It works together with lower-level propaganda departments to
deliver these directives to all media and to appoint media
managers to monitor each publication.\38\ The CPD also requires
editors and publishers to attend
indoctrination sessions. In addition, government agencies
heavily regulate the media. News publishers must be licensed by
the General Administration of Press and Publication (GAPP) and
have a government sponsor.\39\ GAPP requires all journalists to
be licensed.\40\ The State Administration of Radio, Film, and
Television (SARFT) controls the content of radio, television,
satellite, and Internet broadcasts.
Major media, such as the People's Daily and Xinhua, remain
closely affiliated with a Party or government entity.\41\
Central Party and government officials use journalists to
gather information so that they can monitor provincial and
local officials, under a policy called ``public opinion
supervision.'' \42\ Stories they deem too critical or
politically sensitive to be published in the media are instead
forwarded as intelligence reports to relevant officials through
classified channels.\43\ Commercialization of the industry in
the 1990s and the ``public opinion supervision'' policy has led
to the development of media with a reputation for more hard-
hitting journalism, including Southern Metropolitan Daily and
Caijing.\44\ Yet, even these more independent media remain
subject to control by propaganda officials and have been
singled out for punishment in the past.\45\
Roles the Media Is Expected to Play
The media in China is expected to act as the Party's
mouthpiece.\46\ Just before becoming President and Party
General Secretary, Hu Jintao, in 2002, reiterated this
longstanding policy, which has remained firmly in place during
Hu's first five years in power.\47\ For example, the Party's
Central Committee issued a resolution at the end of its sixth
plenum meeting in October 2006, calling on the news media to
promote Hu's ``harmonious society'' policy.\48\ To create a
``positive public opinion atmosphere'' for the Party's 17th
Congress in October 2007, propaganda officials issued
guidelines restricting media coverage of 20 topics, including
the 50th anniversary of the anti-Rightist campaign, judicial
corruption, and campaigns by legal rights defenders.\49\ SARFT
ordered television stations to air only ``ethically inspired TV
series'' during prime time in the months leading up to the
Party Congress.\50\
The Party also expects the media to paint central Party and
government officials in a positive light. While media may
report critically on the activities of provincial and local
officials, their criticisms must remain at that level and may
not threaten Party supremacy. The media must emphasize efforts
by central Party and government officials to remedy the
situation. For example, after news media and Internet activists
exposed the widespread use of forced labor in brick kilns in
May and June 2007, authorities chided local officials for
trying to hide information from the media, but then instructed
journalists to limit their coverage and to applaud the rescue
efforts of central Party and government officials.\51\
Media that disobey propaganda directives or publish content
unacceptable to censors continue to risk being disciplined or
censored by the Party. In November 2006, the CPD ordered senior
executives at the Beijing-based weekly magazine, Lifeweek, to
engage in self-criticism and required its journalists to
undergo political training after the magazine violated a Party
directive not to highlight politically sensitive events.\52\
Staff at a newspaper in Sichuan province were suspended for
inadvertently running an
advertisement that included a veiled reference to the Chinese
government's June 4, 1989 crackdown on the Tiananmen Square
democracy protests.\53\ In March 2007, Caijing was reportedly
ordered to withdraw an issue containing an article about a
contentious draft of the Property Law then under
consideration.\54\
Consequences of the Lack of a Free Press
Over the last five years, events such as the SARS crisis in
2003 and more recent government scandals show that the Party's
control over the press denies citizens critical information at
important times. Chinese citizens and citizens around the world
cannot effectively monitor the Chinese government because they
remain dependent on the willingness of one unsupervised source,
the Party, to provide accurate, timely, and unbiased
information. Some recent examples include:
Even after measures implemented following the
SARS crisis in 2003 discouraged local officials from
hiding information, local officials in the provinces of
Jilin and Heilongjiang delayed notifying relevant
officials and the general public about a chemical plant
explosion in 2005 that released chemicals into the
Songhua River, the main water source for the
Heilongjiang capital of Harbin.\55\ They imposed a two-
week press blackout, and the incident led to panic
among citizens and a diplomatic incident with Russia.
When the top Party official in Shanghai was
forced to step down in September 2006 amid allegations
that he had mismanaged the city's nine billion yuan
(US$1.2 billion) pension fund,\56\ propaganda officials
ordered local media to publish only official news
reports from Xinhua.\57\ During this time, Shanghai's
municipal government reportedly did not hold a press
conference for almost four months.\58\
In May 2007, international and Hong Kong
officials complained that Chinese officials were tight-
lipped about a rumored epidemic affecting pigs in a
province near Hong Kong, and about contaminated pet
food that had reportedly caused large numbers of cats
and dogs in the United States to become ill.\59\
China's media had reportedly issued few reports on the
incidents.\60\
In July 2007, the Financial Times reported
that officials at the State Environmental Protection
Administration and Ministry of Health asked the World
Bank to remove from a joint report the figure of
750,000 premature deaths every year in China, caused
mainly by air pollution.\61\ Officials reportedly said
the information was ``too sensitive'' and could cause
``social unrest.'' \62\ A foreign ministry official
denied the charge that any information had been
censored.\63\
In July 2007, propaganda officials ordered
restrictions on food safety reports after a Beijing
reporter issued a false news report alleging that food
vendors were filling steamed buns with pieces of
cardboard.\64\
Limited Prospects for a Free Press
Central government officials have urged local officials to
cooperate more with the media, but this development should not
be interpreted as a shift in government policy to allow for a
freer press.\65\ For example, in July 2007, a State Council
Information Office official criticized local officials for
blocking media coverage of the forced labor scandal at brick
factories in central China.\66\ This criticism is consistent
with the central government's ``public opinion supervision''
policy of relying on journalists to gather information so that
they can monitor provincial and local officials. The central
government's support of this policy has, however, given
commentators in China justification for calling for broader
press freedom,
although they have been careful to do so in the context of
local initiatives to restrict press freedom and to fashion
arguments consistent with ``public opinion supervision.'' \67\
For example, a deputy editor at Southern Weekend argued in an
editorial that the purpose of news is not to serve as a
propaganda tool, and that the central government's ``public
opinion supervision'' policy is intended for the press to be a
check on public power.\68\ The editorial was in response to the
Anhui provincial government's issuance in October 2006 of rules
requiring journalists to write a minimum number of ``positive''
stories about Anhui in order to receive a promotion.\69\
The Chinese government also allowed foreign journalists
greater freedom in 2007. To fulfill China's commitment to give
journalists ``complete freedom'' to report on China when it bid
for the 2008 Summer Olympic Games in 2001,\70\ Premier Wen
Jiabao signed into law new regulations in December 2006, which
eliminate the requirement that foreign journalists must obtain
government permission before conducting interviews.\71\ The new
rules, which went into effect on January 1, 2007 and expire on
October 17, 2008,\72\ have had mixed results. The Foreign
Correspondents Club of China, an association of Beijing-based
foreign journalists, and Human Rights Watch both issued reports
noting that while some journalists have said that China's
reporting environment has improved, harassment, intimidation,
and detention of foreign journalists and the Chinese citizens
they interact with remains commonplace.\73\ Problems have
included intimidation of citizens who speak to foreign
journalists,\74\ harassment of journalists in politically
sensitive areas such as the Tibet Autonomous Region,\75\
harassment of citizens who work with foreign journalists,\76\
and the refusal of local officials to recognize that the new
rules extend to non-Olympics related coverage.\77\ It remains
to be seen whether the rules will be extended beyond the
Olympics and what effect they will have on domestic
journalists. For a more detailed and updated analysis on the
impact of these regulations on freedom of expression in China,
see the Commission's Web site at www.cecc.gov.
One obstacle to press freedom in China is that the state's
control over the media contributes to corruption in the media.
According to David Bandurski, a research associate at the China
Media Project at the University of Hong Kong: ``Media
corruption is facilitated by the quasi-official status of
reporters, who are seen by many Chinese as government
functionaries with special authority. This combination of power
and profit motive is a key ingredient in many extortion
attempts.'' \78\ In May 2007, the People's Daily reported that
a person who had posed as a reporter and top editor at the
paper had collected 3.79 million yuan (US$500,000) in bribes
before being caught and sentenced to life in prison.\79\
Problems of journalists asking for bribes in return for not
publishing negative news or writing a positive story are
reportedly widespread.\80\
This corruption has provided the state with a pretext to
restrict China's media even more.\81\ In March 2007, for
example, the GAPP issued a notice requiring media to take
greater measures to purge their local offices of unlicensed
journalists after one was beaten to death by the owner of an
illegal coal mine who thought the journalist was seeking a
bribe.\82\ Later in 2007, a Beijing journalist falsified a
report on food vendors filling steamed buns with cardboard.
Amid rising international concern over China's food exports,
China responded with a crackdown on false news and illegal
publications, including ``illegal political newspapers and
magazines that fabricate political rumors.'' \83\
INTERNET CENSORSHIP
China's Internet Policy
Since the Internet first became popular in the late 1990s,
China's policy has emphasized management and control over this
medium. In a January 2007 speech to Politburo officials,
Communist Party General Secretary Hu Jintao called for
``purifying'' the Internet environment, saying that ``the
stability of the state'' depended on the Party taking full
advantage of and successfully controlling the Internet.\84\
China has controlled the Internet through licensing
requirements for Web sites, shutting down and blocking access
to Web sites that post political content, and detaining
citizens who criticize the government online or post
politically sensitive content. Its efforts have been relatively
successful. Despite heavy censorship, many citizens consider
the Internet in China to be quite free, with unprecedented
access to information about sports, entertainment, and
business, and in some cases, political content that China fails
to block. According to a recent survey, more than 80 percent of
Internet users in China are satisfied with the diversity of
content.\85\
Far from simply limiting online information that runs
counter to the Party's ideology, the Party has sought to use
the Internet to bolster its monopoly on political power and to
drive China's economy. According to the World Bank, information
and communication technologies have led China's economic
ascent, growing two to three times faster than China's overall
GDP over the last 10 years.\86\ Internet use has skyrocketed
from 59 million users in 2002 to 162 million in June 2007.\87\
According to Tim Wu, an expert on China and a professor at
Columbia Law School, ``the Chinese government has seen the
Internet as an enormous opportunity at igniting public opinion
in its favor.'' \88\ During his January 2007 speech to
Politburo officials, President Hu emphasized the central role
the Internet plays in the Party's efforts to shape public
opinion.\89\ China views the Internet as a battleground for
public opinion that is currently monopolized by the West,\90\
and has sought to overcome this perceived monopoly by
increasing Chinese sources for online information. The fact
that it is easy to communicate with large numbers of people
over the Internet, and that users rely heavily on the Internet
for news and information, make the Internet a powerful platform
for promoting the Party's ideology and policies.
Measures To Control the Internet
China's measures to control the Internet do not conform to
international standards for freedom of expression. Under the
ICCPR and UDHR, such restrictions may be imposed only if they
are provided by law and are necessary to protect national
security or public order, public health or morals, or the
rights or reputations of others.\91\ In some cases, China has
imposed restrictions to address issues of public concern, such
as privacy protection, false advertisements, spam, online
pornography, and youth addiction to the Internet.\92\ But
public officials in China also prohibit citizens from
accessing or posting online content if they find such content
to be politically unacceptable without any formal determination
of necessity based on ICCPR and UDHR standards.
Licensing System
As noted in the Commission's 2006 Annual Report, the
government requires all Web sites in China to be either
licensed by, or registered with, the Ministry of Information
Industry (MII).\93\ Web sites that fail to register or obtain a
license may be shut down and their operators fined.\94\
Authorities appear to be shutting down more Web sites in
preparation for the 17th Party Congress, many for being
unregistered.\95\ Anyone wishing to post or transmit news
reports or commentary relating to politics and economics, or
military, foreign, and public affairs, must also have a
government license.\96\ According to the OpenNet Initiative,
``In large measure, the registration regulation is designed to
induce Web site owners to forego potentially sensitive or
prohibited content, such as political criticism, by linking
their identities to that content. The regulation operates
through a chilling effect.'' \97\ China continues to draft
regulations to bring new forms of online media into the
registration system. In April 2007, for example, Xinhua
reported that the General Administration of Press and
Publication (GAPP) had drafted the Regulation on the
Supervision of Internet Publishing, which would require online
magazines to be examined and approved by GAPP prior to
publication.\98\
Monitoring, Blocking Access, and Filtering Content
China has continued to block access to foreign Web sites,
which it is able to do because it controls access at the
gateway connection between China and the global Internet.\99\
Over the past five years, the Commission has noted that at
various times China has blocked the Web sites of AltaVista,
Google, and foreign news providers such as the Voice of
America, Radio Free Asia, and the BBC, and human rights
advocacy groups such as Human Rights Watch, Human Rights in
China, Reporters Without Borders, and the Committee to Protect
Journalists. The Commission has noted in its recommendations on
the Internet that China's censorship system prevents its
citizens from accessing information about their rights and
China's violations of them. Since May 2005, the Chinese
government has prevented its citizens from accessing the
Commission's Web site. In June 2007, China reportedly unblocked
access to the English Wikipedia Web site after it had been
blocked for most of the last 18 months, but the version of
Wikipedia designed for Chinese users remained blocked. Bloggers
reported that certain pages on the English site remained
blocked as well, such as those relating to Tibet or Tiananmen
Square.\100\ In July, Yahoo!'s photo sharing Web site, Flickr,
reported that China had blocked its site, after ruling out the
possibility of a technical problem.\101\
China employs a large number of public security officials
to monitor the Internet and is improving its monitoring
capabilities as Internet usage grows. In April 2007, Xinhua
reported that by the end of June, all major portals and online
forums would be monitored by ``virtual cops'' of the Ministry
of Public Security.\102\ In May, the MII announced that by
October the ministry would complete a database of registered
Web sites that would make it easier for law enforcement
officials to keep track of the rapidly growing number of Web
sites.\103\ Xinhua reported that more than 2,000 Web sites are
registered each day.\104\
China compels Internet companies to assist in censorship by
requiring them to filter search results and to monitor the
Internet activities of its customers to ensure that ``harmful
information'' does not come online. Chinese search engines such
as Baidu, and the China-based search engines of Yahoo!, MSN,
and Google filter search results, including those relating to
the Voice of America, Radio Free Asia, and human rights.\105\
Providers of Internet access and services must monitor
customers' online activity, maintain records of such activity,
provide such information to officials as part of a ``legal
investigation,'' and remove any ``harmful'' information.\106\
In February 2007, Radio Free Asia reported that Sohu.com, a
major Chinese Internet portal, had shut down two of the blogs
of Pu Zhiqiang, a prominent lawyer who has promoted citizens'
legal rights.\107\ Internet cafes, where many Chinese access
the Internet, are also required to record the identities of
their customers, monitor their online activity, and maintain
records of both for not less than 60 days.\108\
Internet companies have also repeatedly pledged publicly to
support China's censorship policies over the last five years,
although they have shown a willingness to resist some
proposals. This past year, the Internet Society of China (ISC),
a think tank affiliated with the MII, sought to implement a
policy requiring all bloggers to register under their real
names. Real name systems may be useful for encouraging civil
discourse and accountability, but in the context of China's
tightly censored Internet it threatens what has become a haven
for expression, as bloggers had come to rely on a veneer of
anonymity\109\ that had emboldened many to publicly express
opinions they otherwise would not have. Real name systems that
have already been implemented have reportedly led to dramatic
drops in participation.\110\ In May 2007, the ISC decided
against making the proposal mandatory following industry
resistance.\111\ Instead, major Internet companies such as Sina
Corporation, NetEase.com, Inc., TOM Online, Inc., Yahoo! China,
which Yahoo! retains a minority stake in but reportedly does
not have day-to-day operational control over,\112\ and MSN's
China service, signed a self-discipline pledge in August to
encourage Internet users to use their real name when posting
blogs or essays online.\113\ Yahoo! and MSN, however, both
indicated that there were no current plans to require customers
to use their real names to register for blogging services.\114\
Imprisoning Online Critics
Over the last five years, public officials in China have
frequently used Article 105 of the Criminal Law to detain
citizens for criticizing the government and the Party online,
especially on Web sites outside of China.\115\ Article 105
outlaws ``subversion'' or ``incitement of subversion.'' The UN
Working Group on Arbitrary Detention has criticized China's use
of such ``vague, imprecise, and sweeping'' provisions to punish
peaceful expression of rights guaranteed in the UDHR and
ICCPR.\116\
Over the past year, public officials in China have punished
numerous online critics in the run-up to the 17th Party
Congress and the 2008 Beijing Summer Olympic Games.
In October 2006, a court in Hebei province
sentenced Internet essayist Guo Qizhen to four years in
prison for inciting subversion in connection with 30
essays he posted on a U.S.-based Web site.\117\
In October 2006, a court in Shandong province
sentenced Internet essayist Li Jianping to two years in
prison for inciting subversion in connection with
essays he posted on foreign Web sites.\118\
In March 2007, a court in Zhejiang province
sentenced writer Zhang Jianhong (whose pen name is Li
Hong) to six years in prison for inciting subversion by
``slandering'' the government and China's social system
in 60 essays he posted on foreign Web sites.\119\
In April 2007, a Zhejiang court sentenced
painter and writer Yan Zhengxue to three years in
prison for inciting subversion by ``attacking the
Party's leaders'' on foreign Web sites.\120\
In August 2007, a Zhejiang court sentenced
writer Chen Shuqing to four years in prison for
inciting subversion after he criticized the government
online.\121\
The above individuals in Zhejiang were reportedly members
of the China Democracy Party (CDP) or charged with being a CDP
member,\122\ and joined other reported CDP members in Zhejiang
who were punished this past year, including Chi Jianwei and Lu
Gengsong. Chi was sentenced to three years in prison in March
for ``using a cult to undermine implementation of the law''
\123\ and Lu was detained in August on charges of inciting
subversion.\124\ [See Section III--Civil Society for more
information on the CDP.]
Authorities also refused to renew the license of Li Jianqiang,
the lawyer who represented Chen, Zhang, Yan, and Guo.\125\ Li
has represented numerous writers and activists, including
freelance writer Yang Tongyan (whose pen name is Yang
Tianshui), sentenced in May 2006 to 12 years in prison on
``subversion'' charges for criticizing the government online
and attempting to form a branch of the CDP.\126\
Public officials in China have also used Article 105 to
punish citizens who criticize China's human rights record in
the context of the 2008 Olympic Games. In August 2007, public
security officials in Jiamusi city, Heilongjiang province,
arrested Yang Chunlin and charged him with inciting subversion
after he organized an open letter titled ``We Want Human
Rights, Not the Olympics,'' and gathered more than 10,000
signatures from farmers who had reportedly lost their
land.\127\
Additional information on these cases and others is
available on the Commission's Political Prisoner Database [See
Section I--Political Prisoner Database].
Both the UDHR and ICCPR allow for restrictions on free
speech only to the extent necessary to protect national
security. Available opinions from these cases, however, provide
no examples of any subversive language and make no attempt to
show that the actions in question caused or were likely to
cause a threat to China's national security.\128\ Moreover, the
courts did not place any constitutional limitations on the
authority of the government to criminalize certain types of
speech, or balance the need to protect national security with
the right to freedom of expression. Chinese officials have also
begun to punish citizens for simply looking up and viewing Web
sites deemed to be reactionary or a threat to its power. Zhang
Jianping was barred from using the Internet for six months
after he allegedly accessed the Web site for the Epoch Times, a
New York-based newspaper linked to Falun Gong and known for its
critical coverage of China.\129\
Challenges to Control
The Internet presents a daunting challenge for the Party.
Its decentralized nature and the ability to send information to
large numbers of people quickly makes it increasingly difficult
to control.\130\ This challenge is expected to increase over
time as more people use the Internet and rely on it for
information. With a penetration rate of only 12.3 percent of
China's population, below the world average of 17.6 percent,
there is plenty of room to grow.\131\ The average number of
hours per week spent online rose from 11.5 in 2002 to 18.6 in
June 2007. Almost all Internet users in China look to the
Internet first for information and more than three-fourths said
that they first found out about a major news event from the
Internet.
Commentators have noted recently that the Internet and
blogs in particular are becoming a powerful vehicle for
citizens to provide one another information that contrasts with
information in the state-controlled press and Party propaganda.
The number of blogs, personalized Web pages that citizens use
to provide running commentary on all kinds of topics, has grown
to an estimated 20 million in China.\132\ Xiao Qiang, Director
of the China Internet Project at the University of California
at Berkeley, testified at the Commission's hearing in September
2006 that ``[o]nline discussions of current events, especially
through Internet bulletin board systems (BBS) and Weblogs, or
`blogs,' are having real agenda-setting power.'' According to
Ashley Esarey, a Middlebury College professor and expert on
China's media controls, China's blogs exhibit much higher
freedom and pluralism than the state-controlled press.\133\ The
Internet has provided a platform for ``citizen journalists''
who operate largely outside of the censorship system for
traditional media\134\ and citizens are using less regulated
blogs to break news stories. ``[E]very blogger is a potential
source of news. The Internet has the power to take any local
news story and make it national news overnight,'' said Li
Datong, the ousted former editor of Freezing Point, a weekly
published by the China Youth Daily, who now writes for the
current affairs Web site openDemocracy.\135\
Other information sharing technologies, especially cell
phones, are posing similar challenges to China's information
control. Cell phone use is ubiquitous in China and popular
among broad segments of the population. By July 2007, cell
phone usage had grown to 500 million, almost 40 percent of the
population.\136\ Rural residents made up nearly half of China
Mobile's 53 million new cell phone subscribers in 2006.\137\
While cell phones are a less conducive platform for exchanging
large amounts of information, in China they are a popular tool
for sending short text messages. Chinese of all ages use the
``text messaging'' function much more often than in the United
States, where it has remained largely the province of the
young.\138\ China also employs censorship technology to filter
out politically sensitive text messages.\139\
Citizens have been using the Internet and cell phones with
increasing success to shape and even drive the reporting
agendas of mainstream news outlets, and to force governments to
address problems. Censors have not been able to stop an initial
tide of information and instead have been left to contain the
situation after the fact. Several high-profile instances over
the last year include:
Officials in the southeastern port city of
Xiamen, home to more than 2 million people, planned to
build a 300-acre, 10.5 billion yuan (US$1.4 billion)
hazardous chemical plant in a heavily populated
neighborhood.\140\ In March 2007, central government
officials criticized the project's safety,\141\ but
officials in Xiamen kept local residents in the dark
about the concerns and made sure local media touted the
project's economic benefits.\142\ A local resident who
became aware of the concerns began to use his blog to
organize opposition to the plant, telling readers the
plant would hurt the local property market and tourism
industry.\143\ Word quickly spread over the Internet.
Meanwhile, residents began to circulate cell phone text
messages comparing the plant to an ``atomic bomb.''
\144\ Xinhua
reported that citizens sent nearly one million text
messages opposing the project, leading local officials
to suspend construction in May 2007.\145\ Despite local
officials' efforts to censor the Internet and cell
phones, area residents used both to organize and
document protest marches in early June that attracted
thousands.\146\
The Internet also helped bring nationwide and
international attention to the kidnapping of migrant
workers forced into labor in brick factories in central
China. In early June 2007, the relative of a rescued
child posted a plea on the Internet on behalf of
hundreds of parents still looking for missing
children.\147\ The post was rejected by a Xinhua forum
for containing ``sensitive content,'' but was
successfully posted on
another forum. Her original post and a re-posting were
each viewed hundreds of thousands of times. Following
the postings, China's traditional media outlets gave
the story extensive coverage, exposing in graphic
detail the large numbers of migrant workers, including
many children and mentally ill, who were forced under
heavy guard to work for no pay and little food.\148\ In
response, the government launched raids involving a
reported 35,000 policemen, ordered media to highlight
the Party's rescue efforts, sought to discredit the
Internet activist who helped uncover the scandal, and
warned parents and lawyers for victims not to speak to
journalists.\149\ [See Section II--Worker Rights for
more information on the labor issues relating to this
case.]
In March 2007, Chinese bloggers made a
national news sensation of a couple in Chongqing city
in western China who resisted pressure to sell their
home to developers, leaving their house protruding in
the air like a nail after the land around it had been
excavated.\150\ Bloggers posted photos of the ``awesome
nail house'' and traveled to the scene to conduct their
own reporting of the story, which hit the headlines
shortly after the landmark Property Law had been
passed.\151\
While these technological tools have offered citizens new
opportunities to express themselves and to elude censors, they
have not
increased citizens' freedom of expression per se, as the
Chinese government has consistently responded to these
outpourings of discontent with increased restrictions.
Officials imposed restrictions on media coverage, blocked
access to or removed offending blogs and cell phone text
messages, and in some cases warned citizens not to speak with
the media.\152\ After the Xiamen chemical plant protests, for
example, local officials drafted legislation that would
prohibit area Internet users from commenting on blogs and
discussion forums anonymously and require local Internet
service providers to improve their capability to filter out
``harmful and unhealthy'' information.\153\
FREEDOM TO PUBLISH IDEAS AND OPINIONS
Government Policy Toward Publishing
The Chinese government's licensing scheme for print
media\154\ that has remained in place over the last five years
does not conform to international standards for freedom of the
press.\155\ An individual who wishes to publish a book,
newspaper, or magazine may not do so on their own, but must do
so through a publisher that has been licensed by the General
Administration of Press and Publication (GAPP).\156\ The GAPP
requires that to obtain a license, publishers must have a
government sponsor and meet minimum financial
requirements.\157\ Every book, newspaper, and magazine must
have a unique serial number, and the GAPP maintains exclusive
control over the distribution of these numbers.\158\ GAPP
officials have explicitly linked the allotment of book numbers
to the political orientation of publishers.\159\
While not speaking specifically about this licensing
scheme, Premier Wen Jiabao acknowledged in March that
government agencies with too much licensing authority, and
little restraint or oversight, had bred corruption among
officials.\160\ In July, popular writer Wang Shuo accused
television censors of abusing their authority and collecting
bribes in exchange for a television show's approval, a
situation that one official acknowledged, but denied being
widespread.\161\ Concern over corruption has not stopped
officials from continuing to expand their licensing authority
over free expression. In April 2007, the Ministry of Culture
announced that it would begin to require actors, singers,
directors, and other artists to receive certification in order
to be hired.\162\
Publishers and writers must serve the Communist Party's
interests. Long Xinmin said in October 2006 while he was
director of GAPP that press and publishing departments must
``insist on the unwavering guiding position'' of Marxism and
the Party.\163\ In November, President Hu Jintao told writers
that the Party hoped that ``each would make their own
contribution to building a harmonious society.'' \164\ In March
2007, Long Xinmin said that press and publishing industries
must ``firmly grasp the correct guidance of public opinion and
create a good public opinion environment'' for the Party's 17th
Congress and ``harmonious society'' policy.\165\
Banning and Confiscating Illegal Publications
The government continues to target publications that
contain
political and religious information and opinions with which the
government disagrees or for simply not having a license to
publish. Between 2002 and 2006, public security officials in
China confiscated 590 million ``illegal publications.'' \166\
Many of the publications are targeted for violating
intellectual property rights or containing pornographic
content, but in 2004, for example, public officials confiscated
hundreds of thousands of copies of publications solely
because of their political content. In 2005, officials seized
996,000 copies of ``illegal political publications.'' During a
two-month period in 2006, officials seized 303,000 copies of
``illegal publications'' deemed to have harmed social
stability, endangered state security, or incited ethnic
separatism.\167\ During that same period, officials confiscated
616,000 unauthorized newspapers and periodicals.\168\ In
February 2007, a GAPP official explained that a crackdown on
``illegal political publications,'' including those that
``attacked the Party's leaders,'' ``slandered the socialist
system,'' or concerned Falun Gong, would be a major focus of
the ongoing Sweep Away Pornography and Strike Down Illegal
Publications campaign in preparation for the Party's 17th
Congress.\169\ [See Section II--Freedom of Religion--Religious
Speech for more information on restrictions on religious
publications.] In the first three months of 2007 alone,
authorities confiscated 357,000 copies of publications deemed
to have harmed social stability, endangered state security, or
incited ethnic separatism.\170\
China's onerous licensing requirements encourage citizens
to publish illegally, eroding the rule of law, and subjecting
them to the risk that they will be caught and their publication
shut down. One editor of a college magazine in China said in
June 2007 that he had set up his own campus magazine because he
had been disappointed with other magazines in China, which he
described as ``homogeneous, very contrived, and lacking in
energetic content.'' \171\ A professor commenting on the
publications, however, said that without a publication number
the students were engaged in illegal publishing. The professor
said the licensing system was intended to ensure that
publications were not ``abused by certain groups.'' \172\
Censoring Publications
Authors who have published through a licensed publisher
still risk being censored. Propaganda officials decide what to
censor behind closed doors, making verification difficult and a
legal challenge impossible. The Hong Kong-based South China
Morning Post reported that at a meeting in January 2007, GAPP
said it had banned eight books because propaganda officials
determined they had ``overstepped the line.'' \173\ The books
dealt with topics such as China's media, SARS, the Cultural
Revolution, the Great Leap Forward, and democracy. Officials
reportedly criticized one of the books for ``romanticizing''
Japan's occupation of China in the 1930s and 1940s and others
for revealing state secrets.\174\
In response to media attempts to confirm the ban, GAPP
officials denied its existence.\175\ Publishers, however,
confirmed the ban.\176\ As punishment, authorities reportedly
required the editors at one publisher to write self-criticisms
and forego bonuses, and reduced the publisher's allotment of
book numbers by 20 percent. Zhang Yihe, the daughter of a
prominent rightist figure from the 1950s and whose book on the
repression faced by classical opera stars in 1960s China was
banned, sought to have a Chinese court overturn the action, but
two courts in Beijing refused to accept her application.\177\
Preventing Writers From Traveling Freely
Chinese officials have also punished critics by restricting
their travel. In February 2007, local police officials
prevented 20 writers from attending an International PEN
conference in Hong Kong by refusing to approve their travel
documents or warning them not to go.\178\ The writers included
Zhang Yihe and Zan Aizong, a journalist who was detained in
2006 after he posted reports on
foreign Web sites about detentions of Protestants protesting
the destruction of a church in Zhejiang province.
POLITICAL PRISONER DEVELOPMENTS
The case of Shi Tao, a Chinese journalist currently serving
a 10-year sentence for ``illegally providing state secrets to a
foreign organization,'' \179\ gained greater attention outside
of China in 2007, as new information about his case became
public. In 2004, Shi Tao reportedly e-mailed notes to a New
York-based democracy Web site that were from a propaganda
document restricting media coverage during the 15th anniversary
of the 1989 Tiananmen democracy protests. Shi Tao's conviction
in 2005 was based in part on information provided by Yahoo!
China, then under the control of Yahoo!.\180\ In July 2007, the
Dui Hua Foundation and Boxun released a copy of the request
Chinese police made to Yahoo! China seeking information about
Shi Tao's e-mail account. The release of the request brought to
light new information about the basis of the request as
communicated to Yahoo! China because it indicates that the
request related specifically to a suspected ``illegal provision
of state secrets'' case.\181\ In addition, Shi Tao's case
remains significant because he exposed China's censorship of
its media. As the global impact of events within China has
grown, China's censorship of the media has become more
important because the rest of the world relies on China's media
to better understand such events. The Commission will continue
to monitor and note future actions by Chinese officials to
punish citizens for exposing censorship of China's media, in
violation of these citizens' internationally protected right to
freedom of expression.
Another journalist, Zhao Yan, completed his three-year
sentence for fraud and was released in September 2007.\182\
Authorities originally arrested Zhao, a Chinese researcher for
the New York Times (NYT), for providing state secrets to
foreigners.\183\ Sources said the ``state secret'' was
information that former President and Communist Party General
Secretary Jiang Zemin had offered to resign as Chairman of the
Central Military Commission. Jiang's resignation was later
reported in the official press. In August 2006, an intermediate
court in Beijing sentenced Zhao to three years in prison on an
unrelated fraud charge dating from 2001, but acquitted him of
disclosing state secrets. Jerome Cohen, an expert on Chinese
law and advisor to the NYT on Zhao's case, testified at a
Commission hearing in September 2006 that Zhao was ``sentenced
to three years in prison after another trial that can only be
regarded as a farce, and after highly illegal--according to
Chinese law--pre-trial detention, interrogation, et cetera.''
In a positive sign, one journalist was released early while
another received a sentence reduction. Local officials released
former Xinhua journalist Gao Qinrong from a prison in Shanxi
province in December 2006, 4 years before his 12-year sentence
was to expire.\184\ Gao was sentenced in 1999 after he exposed
corruption at an irrigation project in Yuncheng district,
Shanxi province, that implicated top provincial officials. Xu
Zerong received a nine-month sentence reduction on an unknown
date and is due for release in September 2012.\185\ Xu, a
senior research fellow at the Guangdong Academy of Social
Sciences in Guangzhou city and head of an independent
publishing company in Hong Kong, was sentenced to 13 years in
prison in 2001 for revealing state secrets by copying and
sending historical material dating from the 1950s about the
Korean War to researchers overseas, and illegally operating a
business by selling books and periodicals without officially
issued book numbers.
Additional information on these cases and others is
available on the Commission's Political Prisoner Database [see
Section I--Political Prisoner Database].
Freedom of Religion
INTRODUCTION
Government harassment, repression, and persecution of
religious and spiritual adherents has increased during the
five-year period covered by this report. In 2004, the
Congressional-Executive Commission on China reported that
repression of religious belief and practice grew in severity.
The Communist Party strengthened its campaign against
organizations it designated as cults, targeting Falun Gong in
particular, but also unregistered Buddhist and Christian
groups, among other unregistered communities.\1\ The Commission
noted a more visible trend in harassment and repression of
unregistered Protestants for alleged cult involvement starting
in mid-2006.\2\ The Commission reported an increase in
harassment against unregistered Catholics starting in 2004 and
an increase in pressure on registered clerics beginning in
2005.\3\ The government's crackdown on religious activity in
the Xinjiang Uighur Autonomous Region has increased in
intensity since 2001.\4\ New central government legal
provisions and local measures from the Tibet Autonomous Region
government intensify an already repressive environment for the
practice of Tibetan Buddhism.\5\ Daoist and Buddhist
communities have been subject to ongoing efforts to close
temples and eliminate religious practices deemed superstitious,
as well as made subject to tight regulation of temple
finances.\6\ Members of religious and spiritual communities
outside the five groups recognized by the government continue
to operate without legal protections and remain at risk of
government harassment, abuse, and in some cases, persecution.
China has remained a ``Country of Particular Concern'' because
of its restrictions on religion since the U.S. Department of
State first gave it this designation in 1999.\7\
The Chinese government's failure to protect religion and
its imposition of limits on religion violate international
human rights standards. The Chinese Constitution, laws, and
regulations guarantee only ``freedom of religious belief''
(zongjiao xinyang ziyou), but they do not guarantee ``freedom
of religion.'' \8\ As defined by international human rights
standards, ``freedom of religion'' encompasses not only the
freedom to hold beliefs but also the freedom to manifest
them.\9\ Chinese laws and regulations protect only ``normal
religious activities.'' They do not define this term in a
manner to provide citizens with meaningful protection for all
aspects of religious practice.\10\ Religious communities must
register with the government by affiliating with one of the
five recognized religions and they must receive government
approval to establish sites of worship.\11\ The state tightly
regulates the publication of religious texts and forbids
individuals from printing religious materials.\12\ State-
controlled religious associations hinder citizens' interaction
with foreign co-religionists, including their ability to follow
foreign religious leaders.\13\ The government imposes
additional restrictions on children's freedom of religion.\14\
Chinese citizens who practice their faith outside of officially
sanctioned parameters risk harassment, detention, and other
abuses. In 2006, a top religious official in China claimed that
no religious adherents were punished because of their faith,
but the Chinese government continues to use a variety of
methods within and outside its legal system--including
selective application of criminal penalties--to punish and
imprison citizens who practice religion in a manner authorities
deem illegitimate.\15\
As recognized in international human rights standards,\16\
including those in treaties China has signed or ratified,\17\
freedom of religion ``is far-reaching and profound.'' \18\ It
includes the freedom to manifest one's beliefs alone or in
community with others; the freedom to believe in and practice
the religion of one's choice, without discrimination; the
freedom to build places of worship; the freedom to print and
distribute religious texts; the freedom to recognize religious
leaders regardless of those leaders' nationality; and the
freedom of children to practice a religion.\19\
The Chinese government has failed to guarantee these
freedoms to its citizens both in law and in practice.
Party leaders manipulate religion for political ends. Like
his predecessor, President and Party General Secretary Hu
Jintao has responded to an increase in the number of religious
followers through the use of legal initiatives to cloak
campaigns that tighten control over religious communities.\20\
Despite official claims in 2004 that the Regulation on
Religious Affairs adopted that year represented a ``paradigm
shift'' in limiting state intervention in citizens' religious
practice,\21\ it codified at the national level ongoing
restrictions over officially recognized religious communities
and discriminatory barriers against other groups. In the area
of religion, the Party has used legal means as a tool for
exerting tight control over all aspects of citizens' religious
practice. Beyond overt measures of control, internal public
security handbooks call for undercover teams to monitor the
activities of religious communities.\22\ In an essay on
maintaining stability in western China, one public security
analyst called for security officials to gather information on
religious communities by cultivating ``secret . . . `friends'
'' from within such communities.\23\
In recent years, top officials publicly have stated that
religion may play a positive role in society,\24\ but have
maneuvered this sentiment to meet Party goals. In its campaign
to promote a ``harmonious society,'' the Party has emphasized
``bringing into play the positive role of religion'' through
greater control of internal religious doctrine.\25\ In July
2006, Ye Xiaowen, head of the State Administration for
Religious Affairs, said the government would
direct religious leaders to provide correct interpretations of
religious tenets to ``convey positive and beneficial contents
to worshippers and direct them to practice faiths rightly.''
\26\ The announcement builds on earlier policies to manipulate
doctrine to suit Party policy. For example, the national
Islamic Association has continued a program to compile sermons
that reflect the ``correct and authoritative'' view of
religious doctrine in line with Party policy, making imams'
confirmation contingent on knowledge of the sermons. The
official Protestant church continues to promote ``theological
construction,'' a guiding ideology designed to minimize aspects
of Christianity deemed incompatible with socialism.\27\ The
government and Party continue to propagate atheism among
Chinese citizens. In an August 2006 article, Ye Xiaowen called
for strengthening propaganda and education on atheism.\28\
Despite controls over religion, unofficial estimates
indicate that the number of religious and spiritual adherents
in China continues to grow. In 2007, Chinese media reported on
a poll by Chinese scholars that found China has approximately
300 million religious adherents, a figure three times as high
as official figures.\29\ The growth of religion in Chinese
society presents potential challenges to government authority,
and government concerns over the rise of religion intersect
with broader apprehensions about perceived social instability
and ethnic unrest. A summary of religious work issued in 2005
listed ``stability'' as the ``number one responsibility.'' \30\
As long as the government views religion as a potential
flashpoint for conflict or challenge to Party authority, it is
unlikely to ease restrictions on religious communities. Broader
political liberalizations that address how China's own
restrictive policies exacerbate instability, however, could
bring improvements in the area of religious freedom, but a
review of events from the past five years indicates a trend in
the opposite direction.
Legislative Developments
The central government has taken more steps to codify state
and Party policy on religion in recent years, particularly
through the 2004 national Regulation on Religious Affairs (RRA)
and subsequent provincial regulations. Though the regulations
guarantee some legal protections to registered religious
communities, they also condition many religious activities on
government oversight and approval. Codification of government
procedures lends more transparency and predictability about
government actions, but as legal controls over the internal
activities of religious communities, the regulations reflect
rule by law rather than rule of law.
Implementation of the RRA has been uneven, resulting in a
confusing legal terrain for citizens who aim to understand the
applicability of legal protections and restrictions imposed by
the regulation. Though the State Administration for Religious
Affairs (SARA) and local governments have reported training
local officials in the RRA,\31\ the complete scope of the
training and indicators for measuring its progress are unclear.
The central government has not issued general implementing
guidelines, but has promulgated a limited number of legal
measures that expand on specific provisions within the RRA. The
new measures clarify some ambiguous provisions in the RRA, but
generally articulate more rigid controls.\32\ Although SARA
also has promoted a handbook that provides a more detailed
explanation of each article of the RRA, the book does not
appear to be widely distributed in training classes.\33\
The national government has not publicized a clear plan of
action for ensuring local regulations on religion are
consistent with national requirements, and inconsistencies
among regulations persist. Most of the provincial-level
regulations issued after the RRA entered into force promote
consistency with the RRA by aligning many key provisions to
national requirements, but at least one province initially
retained provisions that conflicted with those in the RRA.\34\
Other provinces have yet to amend their regulations, leaving
intact provisions that conflict with the RRA and, in some
cases, impose harsher restrictions.\35\
Though the new provincial regulations have promoted
uniformity with national regulations, they also contain
provisions that differ from each other and from the national
RRA. A new comprehensive regulation from Hunan province, for
example, is the first comprehensive provincial-level regulation
on religion to provide limited recognition for venues for folk
beliefs.\36\ Measures from the Tibet Autonomous Region provide
detailed stipulations for the designation and supervision of
reincarnated Buddhist lamas.\37\ Some
provincial-level regulations recognize only Buddhism,
Catholicism, Daoism, Islam, and Protestantism. Others are
silent on this issue.\38\
Recognized and Unrecognized Religious Communities
The central government has not made progress in extending
its limited legal protections for religion to all Chinese
citizens. The Regulation on Religious Affairs (RRA) did not
explicitly codify Buddhism, Catholicism, Daoism, Islam, and
Protestantism as China's only recognized religious communities,
but the government perpetuates a regulatory system that
recognizes only these communities, with limited exceptions.\39\
Although recognized groups receive limited guarantees to
practice ``normal religious activities,'' they must submit to
state-defined interpretations of their faith as well as ongoing
state control over internal affairs. The RRA and subsequent
regulations continue to subject recognized communities to
onerous registration and reporting requirements.\40\
Party-sponsored religious associations,\41\ with which
religious communities must affiliate, remain the state's main
vehicle for ensuring religious practice conforms to Party goals
and for denying religious communities doctrinal
independence.\42\ The associations vet religious leaders for
political reliability, and religious leaders who express
sensitive political views have faced dismissal from their
posts. For example, in 2006, the national Buddhist Association,
in coordination with government officials, expelled a Buddhist
monk from a temple in Jiangxi province after the monk led
religious activities to commemorate victims of the 1989
Tiananmen crackdown and took measures to address corruption
among government officials and the Buddhist Association.\43\
Authorities in the Xinjiang Uighur Autonomous Region have
enforced an ongoing campaign to monitor imams and decertify
religious leaders deemed unreliable.\44\
Unregistered religious and spiritual communities continue
to practice their faith under the risk of harassment,
detention, and other abuses. Differences in legislation and
regional variations in the implementation of religious policy
have allowed a limited number of unrecognized groups to operate
openly.\45\ Without the clear guarantee that all citizens have
a right to openly practice their religion, however, all
unregistered communities remain vulnerable to official abuses
and restrictions on their freedom. Religious and spiritual
communities defined as ``cults'' remain subject to persecution.
In 2004, the Party increased its campaign against organizations
it designated as cults, targeting Falun Gong practitioners as
well as unregistered communities including Buddhist and
Christian groups.\46\ In July 2007, the central government
instructed officials to ``strike hard against illegal religions
and cult activities'' as part of a campaign to address
perceived instability in rural areas.\47\ The promulgation of
the RRA may increase pressures on unregistered groups. A
district in Shanghai, for example, has set targets for carrying
out work to eliminate ``abnormal religious activity'' in
accordance with the RRA.\48\
Freedom To Interact with Foreign Co-religionists and Co-religionists
Abroad
The Chinese government restricts Chinese citizens' freedom
to interact with foreign citizens in China and with citizens
abroad as part of its policy to promote self-management and
independence from foreign religious institutions.\49\ Chinese
officials have increased oversight of citizens' contacts with
foreign religious practitioners within China in the run-up to
the 2008 Beijing Summer Olympic Games. In March 2007, Minister
of Public Security Zhou Yongkang said the government would
``strike hard'' against hostile forces inside and outside the
country, including religious and spiritual groups, to ensure a
``good social environment'' for the Olympics and 17th Party
Congress.\50\ In 2006, local officials expelled a registered
church leader in Shanxi province after his church invited an
American missionary to the church.\51\ According to the
nongovernmental organization China Aid Association, authorities
implemented a campaign in 2007 to expel foreigners thought to
be engaged in Christian missionary activities.\52\ National
rules governing the religious activities of foreigners forbid
them from ``cultivating followers from among Chinese
citizens,'' distributing ``religious propaganda materials,''
and carrying out other missionary activities.\53\
Freedom of Religion for Chinese Children
The Chinese government failed to secure the rights of
children to practice religion in its recent codification of
religious policy. Although a Ministry of Foreign Affairs
official stated in 2005 that no laws restrict minors from
holding religious beliefs and that parents may give their
children a religious education,\54\ recent legislation has not
articulated a guarantee of these rights. Regulations from some
provinces penalize acts such as ``instigating'' minors to
believe in religion or accepting them into a religion.\55\ In
practice, children in some parts of China participate in
religious activities at registered and unregistered venues,\56\
but in other areas, they have been restricted from
participating in religious services.\57\
Ambiguities in the law and variations in implementation
have created space for children in some parts of China to
receive a religious education. Some Muslim communities outside
the Xinjiang Uighur Autonomous Region have established schools
to provide secular and religious education to children.\58\ In
some ethnic minority communities, children receive education at
Buddhist temples.\59\
Some recent government campaigns against religion have
targeted children. In 2004, authorities launched campaigns to
educate children against the evils of government-designated
cults and to encourage children to expose family members
engaged in ``illegal religious activities.'' \60\ In 2006, Ye
Xiaowen called for strengthening education in atheism
especially among children.\61\
Social Welfare Activities by Religious Communities
The government accommodates, and in some cases, sponsors,
the social welfare activities of recognized religious
communities where such activities meet Party goals. Article 34
of the Regulation on Religious Affairs allows registered
religious communities to organize such undertakings.\62\ In
some cases, government offices and Party-led religious
associations initiate and control the scope of social welfare
activities.\63\ In other cases, religious civil society
organizations organize their work under other auspices or are
able to operate without registering with the government.\64\
Government support for religious charity work is part of a
broader policy allowing civil society organizations to provide
welfare services in certain areas. [See Section III--Civil
Society for more information.] The government also has
permitted some international
religious organizations to engage in charity work within
China.\65\ In recent years, however, the government has
increased pressures on civil society organizations.\66\
Religiously affiliated civil society groups in tightly
controlled regions such as the Xinjiang Uighur Autonomous
Region (XUAR) face additional restrictions. For example, local
authorities in the XUAR have banned meshrep, Islam-centered
groups that have sought to address social problems.\67\
RELIGIOUS FREEDOM FOR TIBETAN BUDDHISTS
Overview
The Chinese government creates a repressive environment for
the practice of Tibetan Buddhism. Two new sets of legal
measures increase legal bases for repression. Tibetan Buddhist
monks and nuns remain subject to expulsions from religious
institutions and imprisonment for refusing to accept government
policy on issues such as the legitimacy of the Dalai Lama as a
religious leader, and the identity of the Panchen Lama. For a
detailed overview of
current conditions for Tibetan Buddhists in China, see Section
IV--Tibet.
RELIGIOUS FREEDOM FOR CHINA'S CATHOLICS
Overview\68\
The Chinese government continues to deny Chinese Catholics
the freedom to recognize the authority of overseas Catholic
institutions in a manner of their choosing. Authorities blocked
Web sites in 2007 to prevent Catholic practitioners from
viewing an open letter from Pope Benedict XVI urging
reconciliation between registered and unregistered communities
in China. Government harassment against Catholic communities
has escalated since 2004. The government continues to detain
unregistered bishops and coerce registered bishops to exercise
their faith according to Party-dictated terms. The return of
property owned by the Catholic Church in the 1950s and 1960s
remains a contentious issue. Officials and unidentified
assailants have beaten people protesting slated demolitions of
church property.
Harassment, Detention, and Other Abuses
Both unregistered Catholics and registered clergy remain
subject to government harassment, and in some cases, detention.
The Commission noted an increase in reported detentions of
unregistered Catholics in 2005, after the Regulation on
Religious Affairs entered into force.\69\ In June 2007, the
public security bureau detained Jia Zhiguo, underground bishop
of the Diocese of Zhending, in Hebei province, for 17 days.\70\
Authorities detained him again in August as he prepared to lead
meetings to discuss a letter Pope Benedict XVI issued to
Chinese Catholics in June.\71\ Jia previously spent more than
20 years in prison.\72\ In 2006, the government increased
pressure on registered bishops and priests to coerce them to
participate in bishop consecrations without papal approval.
Authorities detained, sequestered, threatened, or otherwise
exerted pressure on registered Catholic clerics to obtain
compliance.\73\ Authorities have pressured both unregistered
clergy and lay practitioners to join registered churches or
face repercussions such as restricting children's access to
school, job dismissal, fines, and detention.\74\
Closures of Religious Structures and Confiscation of Religious Property
The return of religious property remains a contentious
issue. In recent years, some registered Catholic groups have
called on the government to give back church property
confiscated in the 1950s and 1960s, and in separate incidents,
officials or unidentified assailants have beaten people
protesting the slated demolition of such property. For example,
in 2005, government officials assaulted a group of Catholic
nuns in a village near the city of Xi'an, in Shaanxi province,
after the nuns had attempted to prevent the
authorities from erecting a new building on property that the
government confiscated from their religious order during the
1950s. According to overseas sources, the nuns were not
injured, and the construction work was halted after the
assault. In another incident in 2005, unidentified assailants
beat a group of Catholic nuns in Xi'an after the nuns had
organized a sit-in to prevent the demolition of a school
formerly belonging to their religious order. In a separate
incident, unidentified assailants beat a group of Catholic
priests in Tianjin who had occupied a building formerly
belonging to their Shanxi dioceses and demanded its return. At
issue in all three cases was the refusal of local authorities
to abide by government instructions mandating the return of
such property.\75\
China-Holy See Relations
The state-controlled Catholic Patriotic Association (CPA)
does not recognize the authority of the Holy See to appoint
bishops and has continued to appoint bishops based on its own
procedures, in some cases coercing clerics to participate in
consecration ceremonies. While in recent years authorities had
tolerated discreet involvement by the Holy See in the selection
of some bishops, in 2006 the CPA moved to appoint more bishops
without Holy See approval. For example, in November 2006, the
CPA appointed Wang Renlei as auxiliary bishop of the Xuzhou
diocese, Jiangsu province, without Holy See approval, and
authorities reportedly detained two bishops to force their
participation in the ordination ceremony.\76\
In September 2007, the CPA ordained Paul Xiao Zejiang as
coadjutor bishop of the Guizhou diocese. Though the CPA elected
him according to its own practices, the Holy See expressed
approval of his election to bishop.\77\ The same month, the CPA
ordained Li Shan as bishop of Beijing according to its own
practices. The Holy See expressed approval for the
ordination.\78\
The ordinations follow a June 2007 open letter from Pope
Benedict XVI to Catholic church members in China, urging
reconciliation between registered and unregistered Catholic
communities in China and stating that ``the Catholic Church
which is in China does not have a mission to change the
structure or administration of the State.'' \79\ After the
letter was published on the Vatican Web site, Chinese
authorities blocked Internet access and ordered Catholic Web
sites within China to remove the letter.\80\ An overseas news
agency reported that local authorities have since detained at
least 11 unregistered church priests in an effort to assert
official authority in the aftermath of the letter's
publication.\81\
Government apprehension about Chinese Catholics'
relationship with foreign religious communities and
institutions also manifested itself in 2007 in the Xinjiang
Uighur Autonomous Region (XUAR). In July, the XUAR government
announced it would strengthen oversight of Catholic and
Protestant communities to prevent foreign infiltration, a call
reiterated in August by local authorities in the XUAR's Changji
Hui Autonomous Prefecture.\82\
The government has penalized members of the unregistered
Catholic community for their overseas travel. In 2006,
authorities detained two leaders of the unregistered Wenzhou
diocese, Peter Shao Zhumin and Paul Jiang Surang, after they
returned from a pilgrimage to Rome. Six months after their
detention, Shao and Jiang received prison sentences of 9 and 11
months, respectively, after authorities accused them of
falsifying their passports and charged them with illegally
exiting the country.\83\
RELIGIOUS FREEDOM FOR CHINA'S MUSLIMS
Overview\84\
The government strictly controls the practice of Islam, and
religious repression in the Xinjiang Uighur Autonomous Region
(XUAR), especially among the Uighur ethnic group, remains
severe. In recent years the government has increased control
over Muslim pilgrimages and continued an ongoing project to
author sermons that reflect Party values. New confirmation
rules for religious leaders require knowledge of the sermons.
Authorities reportedly have tried to restrict the number of
Muslim students who study religion overseas. Within the XUAR,
the government restricts access to mosques, imprisons citizens
for religious activity determined to be ``extremist,'' has
detained people for possession of unauthorized texts, and most
recently has confiscated Muslims' passports. The XUAR
government maintains the harshest legal restrictions in China
on children's right to practice religion. Religious repression
in the XUAR accompanies a broader crackdown in the region aimed
at diluting expressions of Uighur identity. [See Section II--
Ethnic Minority Rights for more information on conditions in
the XUAR.]
Harassment, Detention, and Other Abuses
Authorities in the XUAR have intensified their crackdown on
religion since 2001. Official records have indicated an
increase in Uighurs in the XUAR sent to prison or reeducation
through labor centers because of religious activity since the
mid-1990s.\85\ XUAR residents reported to overseas human rights
organizations that police monitoring for illegal activity,
including systematic door-to-door searches within neighborhoods
and villages, has increased in recent years.\86\
In recent years, authorities have detained people for
having
unauthorized religious texts. In 2005, authorities in the XUAR
detained a religion instructor and her students, accusing the
teacher of ``illegally possessing religious materials and
subversive historical information.'' \87\ XUAR officials also
detained a group of people for possessing an unauthorized
religious book.\88\
Access to Religious Sites and Closures of Religious Structures
The government continues to enforce tight restrictions on
XUAR residents' ability to enter mosques. Overseas media has
reported on restrictions on mosque entry enforced against
minors under 18, local government employees, state employees
and retirees, and women, among other groups. Authorities
reportedly monitor attendance at mosques and levy fines when
people violate the bans.\89\
Authorities in the XUAR continue to enforce earlier
policies to demolish ``illegal'' religious sites, and they have
increased oversight since 2001.\90\ Authorities reportedly have
not allowed Uighurs in the XUAR to build new mosques since
1999.\91\
Restrictions on the Freedom To Make Overseas Pilgrimages
The central government has increased its control over
Muslims' overseas pilgrimages in recent years, and public
officials in the XUAR have followed suit with further
restrictions. The 2004
national Regulation on Religious Affairs charged the Islamic
Association of China (IAC) with responsibility for organizing
Chinese Muslims' overseas pilgrimages, and stipulated
punishments for the unauthorized organization of such
trips.\92\ In 2006, the IAC established an office to manage
pilgrimages to Mecca.\93\ It also signed an agreement with the
Saudi Ministry of Pilgrimage allowing Chinese Muslim pilgrims
to receive Hajj visas only at the Saudi Embassy in Beijing and
restricting visas to pilgrims in official Chinese government-
sponsored travel groups. The government announced its agreement
with Saudi Arabia after a group of Muslims from the XUAR
attempted to obtain Saudi visas via a third country. In
addition, the IAC issued a circular in 2006 that regulates
secondary pilgrimages (umrah) to Mecca outside the yearly
Hajj.\94\ Some citizens who have tried to take trips outside
official channels reportedly have done so to avoid requirements
to demonstrate political reliability to the government and to
save money, among other factors.\95\ Authorities also
reportedly have tried to restrict Muslims' opportunities to
study religion overseas.\96\
Local officials in the XUAR have used pilgrimage policy to
further religious repression in that region. In June 2007,
after XUAR Party Secretary Wang Lequan announced that the
government would further increase its oversight of pilgrimages
in the region, overseas media reported that local authorities
implemented a policy to confiscate passports from Muslims, and
Uighurs in particular.\97\ In July, the XUAR government
announced that the public security bureau would strengthen
passport controls as part of its campaign to curb unauthorized
pilgrimages.\98\
Religious Publications
The government continues to exert tight control over the
publications of religious materials in the XUAR. In 2007,
authorities in the XUAR city of Urumqi reported destroying over
25,000 ``illegal'' religious books.\99\ During a month-long
campaign in 2006 aimed at rooting out ``political and religious
illegal publications,'' XUAR authorities reported confiscating
publications about Islam with ``unhealthy content.'' \100\ In
2005, official news media reported that XUAR authorities had
confiscated 9,860 illegal publications involving religion,
``feudal superstitions,'' or Falun Gong.\101\
Children
Restrictions on children's right to practice religion are
harsher in the XUAR than elsewhere in China. Legal measures
from the XUAR, unseen elsewhere in China, forbid parents and
guardians from allowing minors to engage in religious
activity.\102\ Local governments throughout the XUAR continued
restrictions on children's right to practice a religion during
2006. They enforced measures during Ramadan to prevent students
from fasting and participating in other religious activities.
Authorities also directed such measures at college students who
are legal adults under Chinese law.\103\ Also in 2006, a county
government in the XUAR began a campaign aimed at monitoring and
reforming the children of religious figures, alongside other
students including truants and children of those
released from administrative detention.\104\
RELIGIOUS FREEDOM FOR CHINA'S PROTESTANTS
Overview\105\
The government and Party control the activities of its
official Protestant church, and the government continues to
target unregistered Protestant groups for harassment,
detention, and other forms of abuse. The targeting of
Protestant groups deemed to be cults intensified in 2004 and
again in 2006. Authorities continue to close house churches and
confiscate property. The government has included in this
crackdown groups with ties to foreign co-religionists.
Religious adherents serving prison sentences include clergy who
printed and distributed religious texts without government
permission. Members of unregistered house churches have made
some advances in challenging government actions, but harassment
and abuses continue.
Harassment, Detention, and Other Abuses
Authorities continue to target some unregistered Protestant
communities for harassment, detention, and other abuses. A July
2007 report from a district within Shanghai called on
authorities to strengthen control over grassroots religious
activity and singled out private Protestant gatherings for
monitoring and regulation.\106\ The China Aid Association
(CAA), a U.S.-based nongovernmental organization that monitors
religious freedom in China, recorded 600 detentions of
unregistered Protestants in China during 2006. It noted that
the figure represents a decline from over 2,000 detentions
recorded in 2005, but attributed the decrease to a new strategy
of targeting church leaders over practitioners and
interrogating practitioners on the spot rather than formally
arresting them.\107\ The CAA found that 18 people were
sentenced to more than a year of imprisonment in 2006.\108\ In
2007, seven police officers attacked and wounded Beijing house
church pastor and farmer advocate Hua Huiqi and his 76-year-old
mother Shuang Shuying.\109\ Officials charged Hua, who had been
previously detained by local officials, with obstruction of
justice and sentenced him to six months in prison. Shuang was
charged with willfully damaging property and
sentenced to two years in prison. An overseas report in August
2007 indicated that police were using Shuang's imprisonment as
leverage to pressure Hua to become a police informant. In
September, authorities reportedly denied Shuang medical parole
despite her poor health.\110\ In October, CAA reported that
authorities placed Hua under house arrest on October 1 and
informed him that his mother's imprisonment was intended to
pressure Hua to stop his activism. CAA reported Shuang had been
beaten in prison.\111\ Gong Shengliang, founder of the South
China Church, continues to serve a life sentence for alleged
assault and rape, and is reported to be in poor health.\112\
Authorities released Liu Fenggang from prison in February 2007
after he served a three-year sentence for reporting on the
government demolition of house churches.\113\ CAA reported that
authorities later placed him under house arrest, starting on
October 1, 2007.\114\
Closures of Religious Structures and Confiscation of Religious Property
The government states there are no registration
requirements for religious gatherings within the home,\115\ but
public officials continue to target unregistered Protestant
churches for closure and demolition. For example, in July 2007,
CAA reported that three underground church buildings in
Wenzhou, Zhejiang province faced imminent demolition by local
government authorities. The government accused the believers of
subscribing to an ``evil cult'' and threatened to arrest them
if they impeded the demolition.\116\ In 2006, a court case
against religious adherents who had protested the demolition of
a church building in the Xiaoshan district of Hangzhou,
Zhejiang province, concluded with the sentencing of eight house
church leaders for ``inciting violence to resist the law.''
\117\ According to the CAA, closures of house churches
increased between 2005 and 2006.\118\
The government also exerts control over the property of
registered Protestant churches. In 2006, approximately 300
members of a registered Protestant church in Gansu province
engaged in a peaceful demonstration to demand the return of
property that had been confiscated by the government in
1966.\119\
Religious Speech
Chinese authorities continue to punish citizens who publish
religious materials without permission, including Protestant
religious leaders who have printed and given away Bibles. In
separate incidents in 2005 and 2006, pastors Cai Zhuohua and
Wang Zaiqing received prison sentences of three and two years,
respectively, after each printed and distributed religious
materials without government permission. In each case, the
sentencing court found that the preparation and distribution of
the materials constituted the ``illegal operation of a
business,'' a crime under Article 225 of the Criminal Law.\120\
Authorities released Cai from prison upon completion of his
three-year prison sentence on September 10, 2007.\121\ The
government has also detained people for publicizing abuses
against house church members. In 2006, Chinese authorities
detained a documentary filmmaker who was making a film about
house churches and detained a journalist after he posted
reports publicizing protests about a church demolition.\122\
Challenging Government Actions
Some members of unregistered churches have used the legal
system to challenge government actions. In August 2006, a court
in Henan province rescinded a decision to subject a house
church pastor to one year of reeducation through labor for
participating in a house church gathering authorities deemed
illegal. In November 2006, a group in Shandong province that
previously had been placed in administrative detention for
their attendance at a house church service reached a settlement
with the Public Security Bureau to rescind the administrative
detention decision against them. [See Section II--Rights of
Criminal Suspects and Defendants for more information.] In
neither case did the rescission include recognition of
practitioners' right to assemble for worship outside of
registered venues for religious activity.\123\ Not all
challenges to government actions have been successful. In 2007,
local governments in Henan province and the Inner Mongolia
Autonomous Region rejected unregistered church leaders'
applications for administrative review of their
detentions.\124\ In addition, rights defenders who have
advocated on behalf of house church members and other groups
have faced repercussions.\125\
Outside of legal channels, international pressure has
resulted in advances for some house churches. CAA reported that
international pressure facilitated the release of 33 arrested
house church leaders and 3 South Korean church leaders who had
been detained after officials raided a house church study group
in Henan province in 2007.\126\ Two days after two house church
pastors appealed for administrative reconsideration regarding a
2007 raid on their churches, local officials in Jiangsu
province returned confiscated property, citing concerns about
negative international repercussions.\127\
Freedom To Interact with Foreign Co-religionists and Co-religionists
Abroad
Authorities have promoted official exchanges with overseas
Protestant churches, including Chinese participation in a 2005
World Council of Churches conference,\128\ but have restricted
citizens from participating in programs outside these official
channels. For example, authorities prevented house church
members and legal advocates Fan Yafeng, Gao Zhisheng, and Teng
Biao from attending a Washington, DC-based forum on religious
freedom in 2005.\129\
In July, the Xinjiang Uighur Autonomous Region (XUAR)
government announced it would strengthen oversight of
Protestant and Catholic communities to prevent foreign
infiltration in the names of these religions.\130\ The
announcement followed church service raids in the XUAR during
2006 and 2007, including those with foreign worshippers and
pastors.\131\ According to CAA, more than 60 of over 100
missionaries expelled from China between April and June 2007
came from the XUAR.\132\
The government has punished some house church members for
traveling overseas. Unregistered Protestant church leader Zhang
Rongliang, who resorted to obtaining illegal travel documents
after the government refused to issue him a passport, was
sentenced to seven and a half years' imprisonment in 2006 on
charges of illegally crossing the border and fraudulently
obtaining a passport.\133\ Also in 2006, authorities placed
house church historian and former political prisoner Zhang
Yinan and his family under surveillance after he applied for a
passport to attend a religious function in the United
States.\134\
GOVERNMENT PERSECUTION OF FALUN GONG
The government has continued its campaign of persecution
against Falun Gong practitioners, which it began in 1999. In
its 2007 report on religious freedom in China, the U.S.
Department of State noted past reports of deaths and abuse of
Falun Gong practitioners in custody.\135\ Government officials
have used both the Criminal Law and administrative punishment
regulations as legal pretexts for penalizing Falun Gong
activities.\136\ Citizens sentenced to prison terms under the
Criminal Law include Falun Gong practitioners who demonstrated
in support of Falun Gong in 1999, as well as practitioners who
prepared leaflets about Falun Gong, including Wang Xin, Li
Chang, Wang Zhiwen, and Ji Liewu.\137\ Authorities released Yao
Jie in 2006 after sentencing her in 1999 to seven years'
imprisonment for crimes related to organizing and using a cult
and for illegal acquisition of state secrets. The charges stem
from accusations that she organized an April 1999 rally of
Falun Gong practitioners outside the central government's
leadership compound.\138\
Falun Gong practitioners and rights defenders who advocate
on their behalf, as well as on behalf of other communities,
including house church members, face serious obstacles in
challenging government abuses. In 2006, authorities intensified
a campaign of harassment against lawyer Gao Zhisheng, who has
represented
numerous activists, religious leaders, and writers, after he
publicized widespread torture against Falun Gong practitioners.
A
Beijing court convicted him in 2006 to a three-year sentence,
suspended for five years, for ``inciting subversion of state
power.'' \139\ Gao went missing immediately after an open
letter that he sent to the U.S. Congress was made public at a
Capitol Hill press conference on September 20, 2007.
Authorities also have harassed members of his family.\140\ [For
additional information, see Section II--Rights of Criminal
Suspects and Defendants.] Overseas organizations reported that
on September 29, 2007, unidentified assailants beat rights
defense lawyer Li Heping, who had advocated on behalf of Falun
Gong practitioners and house church members, among others.\141\
In 2006, courts in Shandong province rejected appeals from
Liu Ruping and his lawyer that challenged Liu's sentence of 15
months of reeducation through labor for posting Falun Gong
notices.\142\
In 2007, the government used possession of Falun Gong
materials as a pretext for squelching a political activist. In
March, a court in Zhejiang province gave a three-year sentence
to Chi Jianwei, a member of the Zhejiang branch of the China
Democracy Party, for ``using a cult to undermine implementation
of the law'' after authorities found Falun Gong materials in
his home.\143\
OTHER RELIGIOUS AND SPRITUAL COMMUNITIES
Local governments continue to shut down unauthorized
Buddhist and Daoist temples. Towns and cities reported in 2006
on campaigns to address the presence of illegal temples through
measures that included closure and demolition.\144\ Some local
governments have targeted temples that include practices deemed
as superstitious beliefs.\145\ Other temples have registered
and submitted to official control. At a forum evaluating
implementation of the Regulation on Religious Affairs in 2007,
the president of the Daoist Association of China noted that the
regulation has led to the registration of previously
unregistered Daoist temples.\146\
The government has supported some official interactions
between domestic and foreign Buddhist communities,\147\ but
also limited some foreign involvement. In 2004, authorities
closed a Buddhist temple renovated by an American Buddhist
association and
detained the temple's designated leader.\148\
Chinese religious adherents with ties to foreign religious
communities not recognized within China have had leeway to
practice their religion in some cases. The U.S. Department of
State reported in 2006 that some Chinese citizens who joined
the Church of Jesus Christ of Latter-day Saints (LDS) while
living abroad met for
worship in a Beijing location that Chinese authorities
permitted
expatriate LDS members to use.\149\ The central government
continues to deny formal recognition to the LDS church as a
domestic religious community, however, as it does other
religious communities outside the five recognized groups,
including Christian denominations that maintain a distinct
identity outside the Chinese government-defined Protestant and
Catholic churches. A few local governments provide legal
recognition to Orthodox Christian communities, but the central
government has not recognized Orthodoxy as a religion.\150\ In
recent years, officials have met with representatives of the
Russian Orthodox Church to discuss China's Orthodox
communities.\151\
Central and local authorities have drawn some aspects of
folk
beliefs into official purview. Since at least 2004, the State
Administration for Religious Affairs has operated an office
that undertakes research and policy positions on folk beliefs
and religious communities outside the five recognized
groups,\152\ but the government has neither extended formal
legal recognition to any of these groups nor altered its system
whereby religious communities must receive government
recognition to operate. In 2006, Hunan province issued the
first provincial-level regulation on religious affairs to
provide for the registration of venues for folk beliefs.\153\
The Hunan provincial government's decision to channel folk
religions into the government system of religious regulation
provides some limited legal protections, but also may subject
more aspects of folk practice to government control. To date,
no other provincial regulation has regulated folk beliefs,\154\
but a central government official has indicated that the
government is studying the Hunan model and may formulate
national legal guidance on the regulation of folk belief
venues.\155\ Authorities continue, however, to express concern
over components within recognized religions deemed as folk
beliefs, and view some aspects of folk practice as
superstitions subject to official censure, and in some cases,
legal penalties.\156\
Ethnic Minority Rights
INTRODUCTION
The Chinese government recognizes and supports some aspects
of ethnic minority identity, but represses aspects of ethnic
minority rights deemed to challenge state authority, especially
in the Xinjiang Uighur Autonomous Region, Inner Mongolia
Autonomous Region (IMAR), and Tibet Autonomous Region and other
Tibetan autonomous areas. Overall conditions vary for members
of the 55 groups the Chinese government designates as minority
``nationalities'' or ``ethnicities'' (minzu),\1\ but all
communities face state controls in such spheres as governance,
language use, culture, and
religion. In recent years, the state has further refined its
legal and economic systems for ethnic minorities, whom official
statistics place at almost 8.5 percent of China's total
population.\2\ The government provides some protections in law
and in practice for ethnic minority rights and allows for
autonomous governments in regions with ethnic minority
populations.\3\ The narrow parameters of the ethnic autonomy
system and the overriding dominance of the Communist Party,
however, prevent ethnic minorities from enjoying their rights
in line with international human rights standards.\4\ [See
Section IV--Tibet for more information on conditions in
Tibetan areas of China.]
The government has taken steps to refine the legal
framework for ethnic minority autonomy, but it has retained the
fundamental features of the system that deny ethnic minorities
meaningful control over their own affairs. In 2005, the State
Council issued legal provisions\5\ for implementing the 1984
Regional Ethnic Autonomy Law (REAL), which defines the
framework for autonomous governments. Though the 2005
provisions include measures beneficial in areas such as local
economic development, monitoring implementation of regional
ethnic autonomy legislation, and protection of cultural
heritage,\6\ some provisions weaken ethnic minority rights. For
example, the provisions bolster measures to promote migration
to ethnic minority areas and reduce support for ethnic minority
language education.\7\ In addition, the basic legal structure
whereby higher organs of government can reject proposed
legislation persists.\8\ [See Section IV--Tibet for a
discussion of the REAL as
implemented in Tibetan areas of China.] In 2006, the National
People's Congress Standing Committee (NPCSC) launched a program
to examine implementation of the REAL in regions throughout
China and reported positively on its investigation.\9\ An NPCSC
investigation team that went to the IMAR, for example,
described the ethnic autonomy system as a success in that
region.\10\ The conclusion conflicts with other reports that
authorities there have taken measures that undermine meaningful
autonomy. In recent years authorities in the IMAR have closed
Mongolian Web sites,\11\ placed on trial Mongolian medicine
practitioners Naguunbilig and Daguulaa,\12\ and denied a Mongol
rights advocate's passport application on the grounds of
``possible harm to state security and national interests.''
\13\ Ethnic Mongol bookstore owner Hada continues to serve a
15-year prison sentence for the crimes of ``splittism'' and
``espionage,'' after he organized peaceful protests for ethnic
minority rights.\14\ Although the IMAR government issued new
legal measures in 2005 to promote ethnic minority language use
in schooling, jobs, and broadcasting, its effectiveness remains
unclear.\15\
The central government has increased support for
development projects in ethnic minority regions, with mixed
results. Aid projects, including the Great Western Development
program launched in 2000, have increased migration, strained
local resources, and furthered uneven allocation of resources
that favors Han Chinese.\16\ In 2007, the central government
issued a separate five-year development program for ethnic
minorities and ethnic minority regions.\17\ The program sets
concrete targets for improving economic and social conditions
among ethnic minorities, who make up almost half of the Chinese
population living in extreme poverty,\18\ and calls for
improved efforts to draft regional ethnic autonomy
legislation.\19\ The program couples such potentially
beneficial reforms, however, with measures designed to monitor
and report on ethnic relations and perceived threats to
stability.\20\
RIGHTS ABUSES IN THE XINJIANG UIGHUR AUTONOMOUS REGION
The Chinese government has increased repression in the
Xinjiang Uighur Autonomous Region (XUAR) since 2001, building
off campaigns started in the 1990s to squelch political
viewpoints and expressions of ethnic identity deemed
threatening to state power.\21\ The government targets in
particular the region's ethnic Uighur population, within which
it alleges the presence of separatist activity. Since the mid-
1990s, the government has carried out ``strike hard'' anti-
crime campaigns that have addressed targets including the
government-designated ``three forces'' of terrorism,
separatism, and religious extremism.\22\ In 2007, XUAR
Communist Party Secretary Wang Lequan called on the XUAR
government to make stability the ``overriding'' concern in the
region and to continue to ``strike hard'' against the ``three
forces.'' \23\ The statement followed a January 5 raid at a
location in the XUAR that Chinese officials described as a
terrorist training base.\24\ Authorities provided limited
information to back up the claim, drawing doubt from outside
observers.\25\ Broader Chinese government reporting on
terrorist threats remains questionable in light of government
actions that conflate the peaceful exercise of rights with
terrorist or separatist activity.\26\ In July 2007, a
publication under the national Ministry of Public Security
called for ``greatly'' strengthening intelligence gathering in
the region to address perceived sources of
instability, including ``antagonistic forces within and outside
the border.'' \27\ In August, Wang Lequan called for ongoing
measures to fight separatism. He urged vigilance against
``western hostile forces'' led by the United States that he
said have used the guise of human rights and ethnic and
religious issues in plots aimed at overthrowing Communist Party
leadership.\28\
Rights abuses in the region are far reaching and target
multiple dimensions of Uighur identity. Repression of Islam,
the predominant religion practiced by Uighurs and many other
ethnic minority groups in the XUAR, remains severe. [See
Section II--Freedom of Religion for more information.] ``Strike
hard'' campaigns have resulted in high rates of incarceration
among Uighurs for state security crimes, including sentences
stemming from religious activity.\29\ Official records have
indicated an increase in Uighurs in the XUAR sent to prison or
reeducation through labor centers because of religious activity
since the mid-1990s.\30\ Ministry of Justice figures from 2001
indicated that Uighurs incarcerated for ``state security
crimes'' made up over 9 percent of those serving prison
sentences.\31\ XUAR residents reported to overseas human rights
organizations that police monitoring for illegal activity,
including systematic door-to-door searches within neighborhoods
and villages, has increased in recent years.\32\
In addition to ``strike hard'' measures, officials also
have enforced ``softer'' policies aimed at diluting expressions
of Uighur identity. In recent years local governments have
intensified measures to reduce education in ethnic minority
languages\33\ and have instituted language requirements that
disadvantage ethnic minority teachers.\34\ Broader
discriminatory hiring practices, including in the government
sector, also hinder ethnic minorities' job prospects. In 2006,
for example, during job recruiting in the XUAR, the Xinjiang
Production and Construction Corps (bingtuan) reserved
approximately 800 of 840 civil servant job openings for Han
Chinese, leaving 38 positions for members of specified ethnic
minority groups.\35\ The government provides incentives for
migration to the region from elsewhere in China, in the name of
recruiting talent and promoting stability.\36\ Measures to
address high population growth have targeted impoverished
ethnic minorities within the region.\37\ At the same time the
government promotes migration to the XUAR to address perceived
labor shortages, it also supports programs to send young ethnic
minorities to work in factories in other parts of China.\38\ In
2007, overseas media reported on abuses in such a government-
sponsored labor program that sent Uighur women to a factory in
Shandong province under false pretenses and compelled them to
work without regular wages.\39\ Central and local authorities
also have promoted abusive labor practices within the region to
fulfill state development goals. To meet harvesting demands in
the XUAR's cotton industry, authorities have compelled children
in the region to pick crops.\40\ The government issued legal
guidance in 2006 on supporting the child labor force.\41\
Authorities in the XUAR continue to imprison Uighurs
engaged in peaceful expressions of dissent and other non-
violent activities. Such political prisoners include Tohti
Tunyaz, who received an 11-year prison sentence in 1999 after
conducting historical research on the XUAR; Abduhelil Zunun,
who received a 20-year sentence in 2001 after translating the
Universal Declaration of Human Rights into the Uighur language;
Abdulghani Memetemin, who received a 9-year prison sentence in
2003 after sending information on human rights abuses to a
foreign NGO; Nurmemet Yasin, who received a 10-year prison
sentence in 2005 after writing a short story authorities deemed
a criticism of government policy in the XUAR; and Korash
Huseyin, who received a 3-year prison sentence in 2005 after
publishing Yasin's work of literature.\42\
Although the Chinese government granted political prisoner
Rebiya Kadeer early release on medical parole to the United
States in 2005, it has since launched a campaign of harassment
and abuse against her family members in the XUAR in an apparent
strategy to punish Kadeer for her activism in exile.\43\ In
2007, a XUAR court sentenced Kadeer's son Ablikim Abdureyim to
nine years in prison for ``instigating and engaging in
secessionist activities.'' \44\ A court imposed a seven-year
prison sentence and fine in 2006 on Kadeer's son Alim, and
imposed a fine on her son Kahar, for tax evasion.\45\ In 2005
and 2006, authorities also placed other family members under
surveillance and house arrest\46\ and held two of Kadeer's
former business associates in detention without charges for
seven months.\47\
The Chinese government's increasing cooperation with
Central Asian neighbors has placed Uighur activists outside of
China at risk of extradition. In 2006, Uzbek authorities
extradited Canadian citizen Huseyin Celil from Uzbekistan to
China, where he received a life sentence in 2007 for
``terrorist activities'' and ``plotting to split the country.''
A former Chinese citizen originally from the XUAR, Celil had
gained political asylum in Canada in 2001. Chinese authorities
do not recognize Celil's Canadian citizenship and have
denied Celil access to Canadian consular officials.\48\
Population Planning
INTRODUCTION
During the past five years, the Chinese government has
maintained population planning policies that violate
international human rights standards. As this Commission noted
in 2006, ``The Chinese government strictly controls the
reproductive lives of Chinese women. Since the early 1980s, the
government's population planning policy has limited most women
in urban areas to bearing one child, while permitting many
women in rural China to bear a second child if their first
child is female. Officials have coerced compliance with the
policy through a system marked by pervasive propaganda,
mandatory monitoring of women's reproductive cycles, mandatory
contraception, mandatory birth permits, coercive fines for
failure to comply, and, in some cases, forced sterilization and
abortion. The Chinese government's population planning laws and
regulations contravene international human rights standards by
limiting the number of children that women may bear, by
coercing compliance with population targets through heavy
fines, and by discriminating against `out-of-plan' children.''
\1\
As this Commission reported in 2005 and 2006, China's
population planning policies in both their nature and
implementation constitute human rights violations according to
international standards. During 2007, human rights abuses
related to China's population planning policies clearly were
not limited to physically coerced abortions. Local officials
have violated Chinese law by punishing citizens, such as
imprisoned legal advocate Chen Guangcheng, who have drawn
attention to population planning abuses by government
officials. Moreover, as described below, population planning
policies have exacerbated imbalanced sex ratios--a male to
female ratio of 118:100, according to the U.S. Department of
State, but reportedly higher in some localities and for second
births.
OVERVIEW OF RECENT DEVELOPMENTS
China's population planning policies exert government
control over women's reproductive lives, impose punitive
measures against citizens not in compliance with the population
planning policies, and engender additional abuses by officials
who implement the policies at local levels. The government
states that population planning policies have prevented more
than 300 million births since implementation, and it justifies
continuing the policies to maintain controls over population
growth.\2\ In 2002, when the Chinese government codified its
population planning policies into national law, an official
stated that China ``does not yet possess the conditions for a
relaxation of [the] birth policy, but there is also no need to
tighten it.'' \3\ A decision issued by the Communist Party
Central Committee and State Council in December 2006 promoted
the continuation of basic national policies on population
planning.\4\ In July 2007, the head of the Population and
Family Planning Commission reiterated that the policies would
remain in place.\5\
China's population planning policies deny Chinese women
control over their reproductive lives. The Population and
Family Planning Law and related local regulations permit women
to bear one child, with limited exceptions.\6\ Women who bear
``out-of-plan'' children face, along with their family members,
harsh economic penalties in the form of ``social compensation
fees'' that can range to multiples of a locality's yearly
average income.\7\ Authorities also subject citizens who
violate population planning rules to demotions or loss of jobs
and other punitive measures.\8\ Authorities have used legal
action and coercive measures to collect money from poor
citizens who cannot afford to pay the fees.\9\ The fees
entrench the disparity between rich and poor, as wealthier
citizens have come to view paying the fees as a way to buy out
of population planning restrictions.\10\ Public officials also
have been able to flaunt restrictions. Official Chinese media
reported in 2007 that the Hunan province family planning
commission found that from 2000 to 2005, nearly 2,000 officials
in the province had violated the Population and Family Planning
Law.\11\ In September 2007, the government and Party announced
new measures to monitor public officials'
adherence to population planning policies and deny promotions
to officials who violate them.\12\ In recent years, the
government has introduced more programs to reward citizens'
compliance with family planning policies, but it has retained
punitive measures.\13\ In May 2007, the national Population and
Family Planning Commission adopted a plan to ``rectify'' out-
of-plan births in urban parts of China.\14\ Controls imposed on
Chinese women and their families, and additional abuses
engendered by the system, from forced abortion to
discriminatory policies against ``out-of-plan'' children,
violate standards in the Convention on the Elimination of All
Forms of Discrimination Against Women,\15\ Convention on the
Rights of the Child,\16\ and the International Covenant on
Economic, Social, and Cultural Rights,\17\ the terms of which
China is bound to uphold as a state party to these treaties.
Abuses in the enforcement of population planning policies
have further eroded citizens' rights. Although the Population
and Family Planning Law provides for punishment of officials
who violate citizens' rights in promoting compliance,\18\
reports from recent years indicate that abuses continue. Media
reports in 2005 publicized abuses in Linyi, Shandong province,
where officials enforced compliance through forced
sterilizations, forced abortions, beatings, and other
abuses.\19\ Citizens who challenge government offenses continue
to face harsh repercussions. After legal advocate Chen
Guangcheng exposed abuses in Linyi, authorities launched a
campaign of harassment against him that culminated in a four-
year, three-month prison sentence imposed in 2006 and affirmed
by a higher court in 2007.\20\ [See also Section II--Rights of
Criminal Suspects and Defendants for more information.]
Structural incentives for local officials to coerce compliance
exacerbate the potential for abuses. In spring 2007, local
officials in Bobai county, Guangxi Zhuang Autonomous Region
(GZAR), initiated a wide-scale campaign to control birthrates
after the GZAR government reprimanded officials for failing to
meet population targets. Officials reportedly required all
women to submit to examinations and subjected women to fines,
forced sterilization, and forced abortions. Authorities looted
homes and seized possessions of citizens who did not pay the
fines.\21\ In May, Bobai residents rioted in protest of
government abuses. Residents of Rong county, also in the GZAR,
protested population planning policies later the same
month.\22\ In one potentially positive development, an
intermediate court in Hebei province agreed in 2007 to hear a
couple's lawsuit against a local family planning commission for
a forced abortion seven years ago, reportedly the first time a
court has taken an appeal in this type of case.\23\
The government has taken limited steps to address social
problems exacerbated by population planning policies, such as
unbalanced sex ratios\24\ and decreasing social support for
China's aging population. In 2006, the government announced
that the following year it would extend across China a pilot
project to provide financial support to rural parents with only
one child or two girls, once the parents have reached 60 years
of age.\25\ The Communist Party Central Committee and State
Council decision issued in 2006 describes the unbalanced sex
ratio as ``inevitably influencing social stability,'' advocates
steps to address discrimination against girls and women, and
promotes measures to stop sex-selective abortion.\26\ Sex
ratios stand at roughly 118 male births to 100 female births,
with higher rates in some parts of the country and for second
births. Demographers and population experts consider a normal
male-female birth ratio to be between 103 to 107:100.\27\
In 2006, the National People's Congress Standing Committee
considered, but decided not to pass, a proposed amendment to
the Criminal Law that would have criminalized sex-selective
abortion.\28\ Local governments have instituted prohibitions
against fetal sex-determination and sex-selective abortion. For
example, in 2006, Henan province passed a regulation imposing
financial penalties on these acts where they take place outside
of limited approved parameters.\29\
At the same time the government has taken some steps to
deal with the sex imbalance and discriminatory attitudes toward
girls, some provincial governments have enforced policies that
institutionalize biases against girls by permitting families to
have a
second child where the first child is a girl.\30\ According to
some observers, imbalanced sex ratios and a resulting shortage
of marriage partners have already contributed to, or will
exacerbate in the future, the problem of human trafficking.\31\
[See Section II--Human Trafficking, and Section II--North
Korean Refugees in China.]
Within individual provincial-level jurisdictions, a range
of factors beyond birth rates affect local population growth.
Internal migration has contributed to demographic shifts within
ethnic minority autonomous regions, among other areas. In 2006,
authorities in the Xinjiang Uighur Autonomous Region (XUAR)
acknowledged that floating and migrant populations would
continue to contribute to the region's high rate of population
growth, but also announced the government would carry out its
population planning policies by continuing measures to control
birth rates. A series of articles from official media
specifically indicated that the XUAR government would target
impoverished ethnic minority areas as the focus of these
measures.\32\ [See Section II--Ethnic Minority Rights, and
Section IV--Tibet, for more information on population issues in
ethnic minority areas.]
During 2008, the Commission will continue to monitor and
report on violations of international human rights standards in
China related to forced abortions, social compensation fees,
licensing for births, control of women's reproductive cycles,
and all other issues.
Freedom of Residence and Travel
FREEDOM OF RESIDENCE
The Chinese government continues to enforce the household
registration (hukou) system it first established in the 1950s.
This system limits the right of Chinese citizens to determine
their permanent place of residence. Regulations and policies
that condition legal rights and access to social services on
residency status have resulted in discrimination against rural
hukou holders who migrate for work to urban areas. The hukou
system exacerbates barriers that migrant workers and their
families face in areas such as employment, healthcare, property
rights, legal compensation, and schooling. [See Section II--
Worker Rights for more information.] Central and local
government reforms from the past five years have mitigated some
obstacles to equal treatment, but provisions that allow people
to change hukou status have included criteria that advantage
those with greater economic and educational resources or with
family connections to urban hukou holders.\1\ The government's
restrictions on residence and discrimination in equal treatment
contravene international human rights standards,\2\ including
those in treaties China has signed or ratified.\3\ In May 2005,
the UN Committee on Economic, Social, and Cultural Rights
expressed ``deep concern'' over the discrimination resulting
from ``inter alia, the restrictive national household
registration system (hukou) which continues to be in place
despite official announcements regarding reforms.'' \4\
Recent reforms have addressed some of the burdens migrants
face. In 2001, the State Council expanded an earlier program to
allow rural migrants who meet set requirements to migrate to
small towns and cities and obtain hukou there, while keeping
rural land rights.\5\ In 2003, the State Council abolished
``Measures for the Custody and Repatriation of Vagrant Beggars
in Cities'' that allowed the police to detain, at will, people
without identification, residence, or work permits.\6\ The same
year, the State Council issued a national legal aid regulation
that does not condition legal aid on residence status.\7\
Central government directives promulgated in 2003 and
beyond also have called for reform, though many have had
limited formal legal force and limited impact.
In 2003, the State Council issued a directive
acknowledging migrants' right to work in cities,
forbidding discriminatory policies, and calling for
improved services for migrants and their families.\8\
Also in 2003, the State Council issued legal
guidance ordering urban governments to take
responsibility for educating migrant children.\9\
A 2004 State Council directive called for an
end to discriminatory work restrictions against
migrants.\10\
The Ministry of Labor and Social Services
(MOLSS) issued a labor handbook the following year
stating that the MOLSS will not require migrants to
obtain a work registration card in their place of
origin before seeking jobs in urban areas.\11\
A joint opinion on the promotion of a ``new
socialist countryside'' issued in 2005 by the Communist
Party Central Committee and the State Council called
for reforms to the hukou system, including a
reiteration of prior reform measures that stalled at
the local level.\12\
In 2006, the State Council issued an opinion
addressing various issues affecting migrant workers and
calling for measures to ease, under certain conditions,
migrants' ability to settle in urban areas.\13\
2006 revisions to the compulsory education law
codify a guarantee of equal educational opportunities
for children outside the jurisdiction of their hukou
registry.\14\
During the 10th session of the National
People's Congress (NPC) in March 2007, Chinese
legislators approved a resolution creating a delegate
quota in the NPC reserved for migrant workers.\15\
In 2007, the Ministry of Public Security
formulated a series of proposals to submit to the State
Council for approval.\16\ Major reforms in the proposal
include improving the temporary residence permit
system, improving the ability of migrants' spouses and
parents to transfer hukou to urban areas, and using the
existence of a fixed and legal place of residence as
the primary basis for obtaining registration in a city
of residence.\17\
Uneven implementation of hukou reform at the local level
has dulled the impact of national calls for change. Fiscal
burdens placed on local governments have served as
disincentives for implementing reforms. Fears of population
pressures and citizen activism, in addition to discriminatory
attitudes against migrants, also have fueled resistance from
local governments.\18\ Since 2001, many provinces and large
cities have implemented measures that allow migrants to obtain
an urban hukou, but they generally give preference to wealthier
and more educated migrants by conditioning change in status on
meeting requirements such as having ``a stable place of
residence'' and a ``stable source of income,'' as defined in
local provisions.\19\ New reforms instituted in Chengdu in 2006
allow some migrants to obtain a hukou where they rent housing
in the city and reside in it for over a year, but the reforms
also impose conditions that disadvantage poorer migrants.\20\
Other policies also are detrimental to broader reforms of the
hukou system. In 2005, authorities in Shenzhen implemented
tighter restrictions against migrants by suspending the
processing of hukou applications for migrants' dependents.
Authorities also said they would limit the growth of private
schools for migrant children and require migrant parents to pay
additional fees to enroll their children in public schools.\21\
In 2006, Shenyang municipal authorities reversed 2003
relaxations on hukou requirements when they reinstituted
temporary residence requirements for migrants.\22\
Some local government measures have been beneficial to
improving conditions for migrants. After the State Council
called in 2004 for abolishing employment restrictions for
migrants, the Beijing municipal government followed suit with
local reforms in 2005 that eliminated restrictions on migrant
workers holding certain occupations.\23\ In 2005, Henan
provincial authorities reported that they would institute
measures to increase migrant workers' access to healthcare
while in urban areas.\24\ In 2006, authorities in a district
within the city of Xi'an reported instituting measures granting
all residents equal access to social services.\25\ Some local
governments have removed discriminatory compensation levels for
rural migrants. In October 2006, the Chongqing High People's
Court issued an opinion stipulating that rural migrants who
have resided in Chongqing for over a year and have an
``appropriate source of
income'' are entitled to the same compensation as urban hukou
holders in traffic accident cases.\26\ The Supreme People's
Court is currently contemplating a new judicial interpretation
on the role of hukou status in determining death compensation
rates.\27\
Central and local governments have accompanied measures to
address discrimination against migrants with calls to
strengthen supervision over migrant populations, reflecting
concerns over
perceived social unrest. The 2003 directive articulating broad
protections for migrant workers also supports measures to
increase control over them, including through ``social order
management responsibility systems.'' \28\ Although a government
official called in 2005 for transforming management techniques
from methods of control to methods of service,\29\ authorities
have continued to enact measures to exert government control. A
circular from Henan province issued in 2006 called for
monitoring migrants by keeping files on their rental
housing.\30\
FREEDOM OF TRAVEL
The Chinese government continues to enforce restrictions on
citizens' right to travel, in violation of international human
rights standards.\31\ The Law on Passports, effective January
2007, articulates some beneficial features for passport
applicants, but gives officials the discretion to refuse a
passport where ``[t]he competent organs of the State Council
believe that [the applicant's] leaving China will do harm to
the state security or result in serious losses to the benefits
of the state.'' \32\ Authorities restrict travel to penalize
citizens who express views they deem objectionable. The Chinese
government initially failed to approve democracy activist Yang
Jianli's passport application,\33\ which he submitted after his
release from prison in April 2007.\34\ In August, however,
authorities
allowed Yang to travel to the United States. Authorities had
detained Yang in 2002 when he crossed into China on another
person's passport. Authorities had earlier refused to renew his
passport and had barred him and other activists from entering
the country.\35\ Chinese officials have prevented other
activists from traveling abroad, including rights defender Tang
Jingling, whose passport was confiscated by Guangdong border
authorities in September 2006 as he was en route to New York.
Tang brought an administrative lawsuit against the government
in December 2006.\36\ In February 2007, the government
prevented a group of writers from participating in a conference
in Hong Kong by denying visas to some writers, warning others
not to attend, and directly preventing some from passing
through border controls into Hong Kong.\37\ [See Section II--
Freedom of Expression for more information.] In June 2007,
authorities intercepted human rights defenders Yao Lifa and
Zeng Jinyan at the airport and prevented them from traveling to
an overseas human rights conference.\38\ In July,
authorities rejected Mongol rights advocate Gao Yulian's
passport application on the grounds of ``possible harm to state
security and national interests.'' \39\ In August, Shanghai
authorities denied the passport applications of rights defense
lawyer and former political prisoner Zheng Enchong and his
spouse Jiang Meili.\40\ The same month, authorities in Beijing
prevented Yuan Weijing, spouse of imprisoned rights activist
Chen Guangcheng, from traveling overseas to accept an award for
her husband.\41\ In 2007, authorities also denied passport
applications from the family members of defense lawyer Gao
Zhisheng.\42\
The government also uses travel restrictions to control
religious citizens' overseas travel and to punish religious
adherents deemed to act outside approved parameters. [See
Section II--Freedom of Religion for more information.] The
central government has increased control over Muslims' ability
to undertake overseas religious pilgrimages, especially since
2004. In June 2007, overseas media reported that authorities in
the Xinjiang Uighur Autonomous Region (XUAR) implemented a
policy to confiscate passports from Muslims, and Uighurs in
particular, in a reported effort to enforce restrictions on
overseas pilgrimages.\43\ In July, the XUAR government
announced the public security bureau would strengthen passport
controls as part of its campaign to curb unauthorized
pilgrimages.\44\ House church leader Zhang Rongliang, who
resorted to obtaining illegal travel documents after the
government refused to issue him a passport, was sentenced to
seven and one-half years' imprisonment in 2006 on charges of
illegally crossing the border and fraudulently obtaining a
passport.\45\ Also in 2006, authorities detained two leaders of
the unregistered Wenzhou diocese, Peter Shao Zhumin and Paul
Jiang Surang, after they returned from a pilgrimage to Rome.
Six months after their detention, Shao and Jiang received
prison sentences of 9 and 11 months, respectively, after
authorities accused them of falsifying their passports and
charged them with illegal exit from the country.\46\
Authorities placed house church historian and former political
prisoner Zhang Yinan and his family under surveillance in 2006
after he tried to apply for a passport to attend a religious
function in the United States.\47\
Status of Women
INTRODUCTION
The Commission has noted in the past that the Chinese
government has been more vigorous in publicizing and condemning
abuse against women than in other areas concerning human
rights.\1\ In 2003, 2004, and 2006, the Commission observed
that, while China had built an expansive legal framework to
protect women's rights and interests, loopholes and inadequate
implementation remained that left women vulnerable to
widespread abuse, discrimination, and harassment at home and in
the workplace.\2\ The Commission noted in 2004-2006 that
China's economic reforms have increased opportunities for women
to build their own businesses, but these reforms still leave
many women, when compared to men, with fewer employment
opportunities, less earning power, less access to education,
especially in rural areas, and increasing risks from HIV/
AIDS.\3\ In its 2004-2006 Annual Reports, the Commission also
noted the existence of women's organizations that advocate on
behalf of women's rights within the confines of government and
Communist Party policy.\4\ In its 2005 Annual Report, the
Commission observed that China's Constitution and laws provide
for the equal rights of women, but, as noted in 2006, vague
language and inadequate implementation continue to hinder the
effectiveness of legal protections written in the Constitution
and national laws.\5\
LAWS AND INSTITUTIONS
The Chinese Constitution and laws provide for the equal
rights of women.\6\ In addition, the Program for the
Development of Chinese Women seeks to increase women's
development by 2010 in areas of the economy, decisionmaking and
management, education, health, law, and the environment.\7\
CECC Annual Reports dating from 2003 have noted that the number
of laws and regulations promoting the equal rights of women has
expanded, with a noticeable difference after 2004.
In August 2005, the National People's Congress (NPC)
Standing Committee passed an amendment to the Law on the
Protection of Women's Rights and Interests (LPWRI), which
prohibit sexual harassment and domestic violence, and require
government entities at all levels to give women assistance to
assert their rights in court.\8\ At least nine provincial and
municipal governments have passed regulations to strengthen the
implementation of the LPWRI.\9\ For example, Shanghai's
regulations, passed in April 2007, explicitly prohibit five
types of sexual harassment, namely verbal, written, pictorial,
electronic transmission of information such as text messaging,
and physical sexual harassment.\10\ The 2002-2004 Annual
Reports noted that although there was initially no specific law
on sexual harassment, people began to file sexual harassment
cases in court and several women won lawsuits against their
employers, in part due to greater economic openness and
government and women's organizations' efforts to build
awareness.\11\ In addition, at least 15 provincial and
municipal governments have detailed domestic violence
regulations, and the Ministry of Public Security and the All-
China Women's Federation (ACWF), among others, issued
guidelines in 2007 that will legally obligate police officers
to respond immediately to domestic violence calls and to assist
domestic violence victims, or face punishment.\12\
Previous annual reports have noted that the lack of a
national definition on key terms, such as discrimination
against women and sexual harassment, hinder effective
implementation of the amended LPWRI and other policy
instruments.\13\ In addition, even though the amended Marriage
Law of 2001 and the amended LPWRI prohibit domestic violence,
``domestic violence'' is not defined, and case rulings in
domestic violence cases are inconsistent due to the lack of
clear standards in laws and judicial explanations.\14\ Other
hurdles in accessing justice include domestic violence victims
bearing the burden in bringing complaints, lack of detailed
provisions on how to implement policy measures, and limited
public understanding and awareness, among other factors.\15\
Recent surveys show that domestic violence and sexual
harassment remain widespread. For example, 30 percent of
Chinese families experience
domestic violence, and 74.8 percent of female migrant workers
engaged in the service industry in Changsha city report
experiencing some form of verbal or physical sexual
harassment.\16\
GENDER DISPARITIES
Economy
China's transition to a market economy has had
contradictory
influences on the social status of women, who contribute to
over 40 percent of China's gross domestic product, offering
them both ``greater freedom and mobility,'' and ``greater
threats . . . at home and in the workplace.'' \17\ The
Commission's 2003 Annual Report notes that women workers face
particular hardships in finding a job, as they are often the
first to be fired and the last to be hired, and there exists
weak labor protection measures, inadequate maternity insurance,
unequal compensation and benefits when compared to men for
equal work, and fewer opportunities for advancement, among
other factors.\18\ There are also concerns that women's
participation in the economy is unevenly distributed between
rural and urban areas, and that the market transition has
increased fees in rural areas, impoverishing some families and
harming girls' access to education.\19\ Young women are
increasingly migrating to urban areas to find work, leaving
them vulnerable to trafficking, forced labor, and other
abuses.\20\
At the same time, some women are succeeding as
entrepreneurs in China, in certain measures even in comparison
to men.\21\ For
example, most of these women entrepreneurs work in small and
medium-sized companies, accounting for 20 percent of the total
number of entrepreneurs in China. Among them, 60 percent have
become successful in the past decade and 95 percent of the
companies that they run have been very successful. These
companies have created more job opportunities for women as
well, since 60 percent of the staff tends to be women.\22\ [See
Section II--Worker Rights.]
Decisionmaking and Management
Women account for 40 percent of government positions, yet
this number may be misleading as very few hold positions with
decisionmaking power. For example, the Ministry of Civil
Affairs estimates that less than 1 percent of village
committees and village-level Communist Party Committees in
China's 653,000 administrative villages were headed by women in
2004. In March 2007, the NPC announced that female
representatives should account for at least 22 percent of the
seats in the 11th NPC, with representatives to be elected by
the end of January 2008, and at least 30
percent of civil servant posts must be held by women.\23\
Various provincial and municipal governments have also
announced gender quotas for positions in their local
governments and local people's congresses.\24\
HIV/AIDS and Health
Chinese health statistics over the past five years continue
to reflect women's disadvantaged status, and also reflect
central and local governments' slow pace in effectively
addressing health issues that are known to disparately impact
women, especially women in rural areas. The Commission's 2005
Annual Report noted that women make up an increasingly larger
percentage of newly reported HIV/AIDS cases, an observation
confirmed by official Chinese government news media.\25\ This
trend has continued in the 2006-2007 reporting period,\26\
although the government has taken some steps to increase HIV/
AIDS awareness among women used in prostitution.\27\ Although
the Commission's 2003 Annual Report observed that China had not
taken the necessary initiatives to increase awareness among
this group, these recent steps suggest a possible positive
development if they are implemented effectively.\28\
China is the only country in the world where the rate of
suicide is higher among women than among men.\29\ According to
the editor of China Women's News, 157,000 women commit suicide
each year in China, 25 percent more than men. In rural areas,
the instance of suicide among women is three to four times
higher than the instance among men, and three to five times
higher than the instance among women who live in urban areas.
Domestic violence is the main cause of suicide among women in
rural areas.\30\ While there has been a decline in maternal
mortality rates since 1991, there is a widening gap between
urban and rural areas, with women in rural areas experiencing
significantly higher mortality rates when compared with
maternal mortality rates in urban areas and the national
average.\31\ Moreover, rural women's rates of illnesses are 5
percent higher when compared with rural men's rates of
illnesses, most likely as a result of long working hours, poor
nutrition and care after childbirth, and the collapse of the
rural cooperative medical system.\32\ [See Section II--Health.]
Access to Education, Especially in Rural Areas
Women continue to have less access to education in rural
areas and lower educational levels when compared to men,
although women's organizations and the government have
initiated programs in recent years to reverse this trend by
providing economic incentives to send girls to school or
seeking to change traditional rural attitudes that give
preference to the education of sons. Despite 99 percent
enrollment rates for girls and boys, only 43 percent of girls
in rural areas, as compared with 61 percent of boys, complete
education higher than junior middle school.\33\ Furthermore,
the National Bureau of Statistics released statistical data in
2006 showing that more than 70 percent of those who are
illiterate and 15 years of age and older are women, a figure
that has increased since 2001.\34\ In an attempt to address
these issues in part, government and government-affiliated
organizations have organized local-level ``Spring Bud''
programs that aim to help girls stay in school around the
country.\35\
Rural Land Reallocation and the Rights of ``Married-Out Women''
``Married-out women'' in rural areas continue to experience
violation of their land and property rights, although judges
have recently ruled in favor of women in certain types of
lawsuits, and some provinces are issuing regulations that seek
to strengthen implementation of existing legal protections.
Village committees, when determining who should be eligible to
receive shares of collectively owned land assets, may order
decisions that legitimize discrimination against ``married-out
women.'' ``Married-out women'' include women who have either
married men from other villages, but whose household
registration (hukou) remains in their birthplace, whose hukou
is transferred from one place back to their birthplace, or
whose hukou is transferred to their husbands' village.
These women are especially vulnerable to violation of their
rights, including rights to use land, to receive compensation
for the land, to use the land for residential purposes, and to
have access to collective welfare resources.\36\ Legal
protections in the form of the PRC Law on Land Contract in
Rural Areas, the Marriage Law, and other laws, guarantee women
the same land rights as men. Judges have ruled in favor of
women in four lawsuits concerning land rights since August
2005, and there have been reports of other successful cases
within the last two years.\37\ Most of these women who have won
lawsuits, however, have been those who still live in their
villages after marrying men from other villages.\38\
There are still tremendous difficulties for ``married-out
women'' to use legal channels to seek redress for violations of
their rights. For example, lawyers have noted that the LPWRI
and relevant regulations in Guangdong province guarantee the
property rights of women, but they lack detailed articles that
could be used to protect these rights.\39\ In addition, each
village also has its own set of laws, which according to the
PRC Organic Law of Village Committees (Organic Law) should not
contravene national laws and regulations.\40\ Yet the Organic
Law does not indicate how to prevent or resolve this
disconnect, with the consequence that some villages uphold
their own laws even when they are in conflict with the LPWRI
and other laws.\41\ In May 2007, Guangdong province passed
regulations to strengthen its implementation of the LPWRI, with
the rule that neither organizations, such as the village
committee, nor individuals can prevent or force rural women to
change their hukou as a result of marriage, divorce, or
widowhood.\42\ In addition, the regulations state that village
rules, laws, and resolutions concerning land rights must not
violate women's rights on the basis of marriage, divorce, or
widowhood.\43\
WOMEN'S ORGANIZATIONS
Women's organizations have been particularly active in the
last few years, although these groups advocate on behalf of
women's rights within the confines of government and Communist
Party policy. The All-China Women's Federation (ACWF), a
Communist Party-led mass organization, plays a supporting role
in the formation of some of these organizations while others
operate more independently and sometimes with unregistered
status.\44\ There were 2,000 active organizations by 1989, and
the Fourth World Conference on Women in 1995 helped to launch
other women's organizations, such as the Center for Women's Law
Studies and Legal Services of Peking University and the Maple
Women's Psychological Counseling Center. In addition, several
women leaders jointly founded the advocacy project Women's
Watch--China in April 2005.
Within the last year, the China Women's University
established a legal center for women and children, and there
have been various seminars and workshops sponsored by
universities, lawyers' associations, and local women's
federations to raise awareness of women's issues among lawyers,
judges, public officials, and academics.\45\ The ACWF works
with the Chinese government to support women's rights,
implement programs for disadvantaged women, and provide a
limited measure of legal counseling and training for women.\46\
As a Party organization, however, the ACWF does not promote
women's interests when such interests conflict with Party
policies that limit women's rights. For example, in 2005, an
ACWF representative in Yunnan province refused to allow a
leading women's rights activist to represent over 500 women in
Yunnan in seeking redress for lost land, on the grounds that
such interference could ``influence stability.'' \47\ In
addition, the ACWF has been silent about the abuses of Chinese
government population planning policies and remains complicit
in the coercive enforcement of birth limits.\48\
NON-DISCRIMINATION IN EMPLOYMENT AND THE WORKPLACE
Women account for 60 percent of total rural laborers, and
by the end of 2004, there were 337 million women working in
cities and rural areas, which accounted for 44.8 percent of the
total workforce, roughly women's proportion of China's general
population.\49\ Women still face tremendous challenges in the
workplace, and women migrant workers face particular hardship.
For example, more than 70 percent of women in a 2007 survey
reported worrying about losing their jobs after becoming
pregnant, and there have been numerous cases of women dismissed
after they became pregnant.\50\ In addition, a 2006 survey of
women migrant workers
conducted by the ACWF found that only 6.7 percent of surveyed
workers had maternity insurance. Of the 36.4 percent who
reported that they were allowed to take maternity leave, 64.5
percent said this leave was unpaid.\51\ Some local governments
have established programs to provide loans, training, and legal
aid for woman workers.\52\ For example, the legal aid center in
Jinan city provides legal services for migrant women
workers.\53\ The ACWF also has programs such as the Two Million
Project, launched in 2003, which aims to train 2 million laid-
off women so that they can find reemployment.\54\ [See Section
II--Worker Rights.]
CONTINUING CHALLENGES IN THE WORKPLACE
The Chinese government has passed a substantial body of
protective legislation, particularly in the area of labor laws
and regulations. For example, the 1978 Temporary Measures on
Providing for Old, Weak, Sick, and Handicapped Cadres
(Temporary Measures) require women to retire at 55, and men at
60.\55\ Chinese academics and government officials have noted
that the Temporary Measures discriminate against women.\56\ In
addition, requirements for employment based on height, weight,
gender, age, and beauty are not uncommon. In 2006, a
transportation company based in Hubei province issued rules
stipulating that female attendants must stay within certain
height and weight requirements, and that attendants whose
weight exceeded 60 kilograms (132 pounds) would be laid
off.\57\ Despite some legal protections, both urban and rural
women in China continue to have limited earning power when
compared to men, and women lag behind men in finding employment
in higher-wage urban areas.\58\
Human Trafficking
INTRODUCTION
The Chinese government has taken some steps to establish a
national-level anti-trafficking coordinating mechanism, to
increase public awareness, to expand the availability of some
social services for victims of trafficking, and to improve
international cooperation. The Chinese government reports that
efforts have led to a decline in some forms of trafficking, but
also notes that there has been an increase in other forms of
trafficking that have not received as much attention, such as
using trafficking victims to perform forced labor or engage in
commercial sex. Within the past five years, for example, there
has been a rise in cross-border trafficking cases, with
internal and international traffickers increasingly working
together. The U.S. State Department also notes that the Chinese
government ``continued to treat North Korean victims of
trafficking as economic migrants, routinely deporting them back
to horrendous conditions in North Korea.'' \1\
DEVELOPMENTS IN THE PAST YEAR
The National People's Congress Standing Committee revised
the PRC Law on the Protection of Minors on December 29, 2006,
which became effective June 1, 2007, to explicitly prohibit the
trafficking of minors.\2\ Article 41 of the revised law
contains new provisions that prohibit the trafficking,
kidnapping, and maltreatment, including sexual exploitation, of
minors, although these terms are not
defined.\3\ In July 2007, the All-China Women's Federation
(ACWF) and the Ministry of Public Security (MPS) held the first
National Anti-Trafficking Children's Forum, in which an MPS
spokesperson noted the increase in the number of cases of
forced labor trafficking and trafficking for commercial sexual
exploitation, and an annual decrease in the number of cases
handled by the MPS that relate to the trafficking of women and
children for marriage and adoption.\4\
Official Chinese case statistics suggest, however, that
China is either not publishing accurate data on the incidence
of human trafficking, uses non-standard categories for these
crimes, or has low prosecution rates in these cases. In 2005,
the MPS reported that Chinese police departments nationwide
opened 2,884 cases of ``abducting women and children,'' of
which they reported ``investigating and handling'' just over
2,400 cases. In 2006, the total number of cases investigated
and resolved was just over 2,100. Police press reports portray
the trends as evidence that such abduction cases have declined
in society since the 1980s and 1990s, and as proof of the
``obvious effectiveness'' of their policies.\5\ By contrast,
the U.S. State Department's 2007 Trafficking in Persons Report
notes that ``an estimated minimum of 10,000 to 20,000 victims''
are trafficked internally each year.\6\ The ACWF-MPS forum also
touched on legal protections for trafficking victims. According
to the MPS spokesperson, ``In trafficking and abduction
aspects, China's legal protection is underdeveloped, and it
needs to be further strengthened.'' \7\ The forum noted, for
example, that China's Criminal Law provides punishment for the
trafficking of women and children, but neglects minors over 14
and male adults, who are often targeted for forced labor.\8\
TRENDS IN THE PAST FIVE YEARS
China's Ministry of Public Security reports that efforts to
combat human trafficking have led to a decline in some forms of
trafficking, but that there has also been an increase in other
forms of trafficking that have not received as much attention,
such as using trafficking victims to perform forced labor.\9\
As the U.S. State Department reports in its annual review of
global human trafficking, China ``is a source, transit, and
destination country'' for human trafficking.\10\ Domestic
trafficking continues to comprise the majority of trafficking
cases in China. Women and children, who make up 90 percent of
the cases, are trafficked from poorer provinces to more
prosperous provinces on the east coast.\11\ Some experts note
that the Chinese government's attention to human trafficking
for commercial sexual exploitation appears to be uneven, with
far greater concern shown towards the internal trafficking of
Chinese girls and women and little concern over foreign girls
and women who are trafficked into China or who enter China
voluntarily but are subsequently trafficked. Many of these
women are from Vietnam, North Korea, and Mongolia, among other
countries, and are treated as immigration violators who are
detained and subsequently repatriated.\12\
There have also been increases in the number of cross-
border trafficking cases and, especially between 2004 and 2006,
an increase in the number of infant trafficking cases.\13\ The
rising number of infant trafficking cases in China reflects
many factors, such as China's population planning policies,
economic disparity, and a lack of awareness among the general
public [see Section II--Population Planning]. Most of the
infants who have been rescued were male, but the increased
demand for children has reportedly driven traffickers to
traffic females as well.\14\ Some of the cases involved social
service organizations buying infants that had been abducted,
and selling them to adoptive families at marked-up prices, as
well as traffickers buying infants from private medical clinics
and other social service organizations and selling them to
buyers elsewhere.\15\ In 2007, the U.S. State Department placed
China on its Tier Two Watch List for the third consecutive year
due to the Chinese government's failure to show evidence of
efforts to improve comprehensive victim protection services and
to address trafficking of persons for forced labor.\16\
INTERNATIONAL LAWS AND OBLIGATIONS
The Chinese government ratified the UN Convention against
Transnational Organized Crime on September 23, 2003, but still
has not ratified its protocol that addresses trafficking in
persons. The protocol represents the first global legally
binding definition of trafficking in persons and aims to
support international cooperation in investigating and
prosecuting cases and in protecting and assisting victims of
trafficking.\17\ In addition, China has ratified the Convention
to Eliminate All Forms of Discrimination against Women and the
Convention on the Rights of the Child, which further legally
bind the Chinese government to suppress and prevent the
abduction and trafficking of women and children.\18\
DOMESTIC EFFORTS TO COMBAT HUMAN TRAFFICKING AND CHALLENGES
Central and local governments have taken steps to combat
trafficking within the past five years, but these initiatives
remain inadequate to effectively address the root causes of
human trafficking and forms of trafficking such as forced
labor. For example, Article 39 of the Law on the Protection of
Women's Rights and Interests (LPWRI), which was amended in
2005, expanded the number of organizations responsible for
preventing trafficking in women and rehabilitating victims,
including local women's federations and local public security,
labor, social security, and health bureaus.\19\ The central
government announced in 2007 that it will establish a national-
level anti-trafficking coordinating mechanism that aims to
strengthen interagency cooperation, as at least seven agencies
currently have regulatory responsibilities to combat
trafficking.\20\
The 2003 and 2004 Commission Annual Reports noted that the
central government initiated several short-term ``Strike Hard''
campaigns to punish traffickers and rescue victims.\21\ But
these campaigns have not proven to be effective instruments
that address the causes of trafficking, nor do they introduce
administrative and legal mechanisms to combat future
trafficking operations. ``Strike Hard'' campaigns have also
been characterized by extensive violations of criminal
procedure rights.\22\ Some provincial and municipal governments
have localized efforts to combat trafficking by creating short-
term rehabilitation centers, and increasing public awareness
efforts that inform people of their legal protections and
resource options.\23\ For example, Sichuan provincial public
security officials have created informational fliers, public
service announcements, and pamphlets that explain legal
protections, resources, and hotline numbers that are aimed at
migrant workers and other workers who are most at risk.\24\ In
addition, within the past year, Yunnan provincial authorities
held a media outreach seminar to raise awareness among
journalists of anti-trafficking strategies, victim protection,
and relevant legislation.\25\
These preliminary steps are positive, but local governments
need to expand them to include more comprehensive victim
rehabilitation services such as psychological counseling and
long-term care. While there are currently legal prohibitions
against some types of human trafficking, these protections do
not prohibit forms of trafficking such as debt bondage or
commercial sexual exploitation that involves coercion or
fraud.\26\ Another hurdle is the difficulty central government
officials face in compelling local law enforcement officials to
aggressively pursue cases that cross jurisdictional boundaries,
especially as more trafficking cases take place across
provincial and national borders.\27\ For example, U.S. experts
have noted that ``local Party dominance over law enforcement
creates powerful
incentives for local police departments to neglect their
responsibilities to share crime-related data and intelligence
with other jurisdictions.'' \28\
INTERNATIONAL COOPERATION
Central and local governments have increased cooperation
with other countries to investigate and prosecute trafficking
cases involving women and children. In particular, the Chinese
government has discussed trafficking in persons with the United
States as part of the bilateral China-U.S. Global Issues Forum,
and has worked to improve its cross-border prosecution efforts
with such countries as Vietnam.\29\ China is also actively
cooperating with international organizations such as the
International Labor Organization, the International
Organization for Migration, and the United Nations Interagency
Project on Human Trafficking in the Greater Mekong Sub-region
on programs to prevent and combat human trafficking.\30\ The
Chinese government has prepared a National Plan of Action to
address the trafficking of women and children, which it still
has not adopted.\31\ A September 4, 2007, China Daily article
noted that the government hopes to adopt the national action
plan by the end of 2007.\32\
North Korean Refugees in China
In 2006-2007, China continued to fail in its obligations to
the thousands of North Korean refugees who crossed its
northeastern border to escape North Korea's chronic food
shortages and political oppression. While an accurate estimate
of the size of this underground population is probably not
possible, in recent years the U.S. State Department and several
NGOs have estimated that 20,000 to 50,000 North Koreans
currently are hiding in northeastern China. Chinese civilian,
law enforcement and military experts speaking in 2005-2006
typically cited an estimate of 30,000 to 50,000.\1\ An October
2006 report by the International Crisis Group surveyed the
opinions of many NGO experts and reached an estimate that the
total number of North Korean refugees residing on Chinese soil
is approximately 100,000.\2\ As noted by the State Department's
2007 Trafficking in Persons (TIP) report, these refugees, many
of whom are women, are unable to work legally in China. Thus,
many of them are highly vulnerable to being kidnapped by
traffickers:
The illegal status of North Koreans in the People's
Republic of China (P.R.C.) and other Southeast Asian
countries increases their vulnerability to trafficking
schemes and sexual and physical abuse. In the most
common form of trafficking, North Korean women and
children who voluntarily cross the border into P.R.C.
are picked up by trafficking rings and sold as brides
to P.R.C. nationals, usually of Korean ethnicity, or
placed in forced labor. In a less common form of
trafficking, North Korean women and girls are lured out
of North Korea by the promise of food, jobs, and
freedom, only to be forced into prostitution, marriage,
or exploitative labor arrangements once in P.R.C.\3\
The U.S. State Department reports that during 2006
``several thousand North Koreans were reportedly detained and
forcibly returned to North Korea.'' \4\ To encourage these
repatriation efforts, central government authorities assign
local public security bureaus in northeastern China a target
number of North Koreans that they must detain in order to
receive favorable work evaluations.\5\ To persuade civilians in
these areas not to assist the refugees, the government also
provides financial rewards to citizens who reveal the
locations of refugees.\6\ By employing these incentive and
punishment systems on citizens to turn these refugees in, China
deliberately undermines its own international legal obligations
to
refrain from repatriating North Koreans and further deters its
citizens from supplying humanitarian assistance. In the past
several years, the government has reportedly built new
detention centers along the Chinese-Mongolian border and the
Chinese-North Korean border in order to accommodate more North
Koreans before it repatriates them.\7\
By returning these refugees to the DPRK , China is in
contravention of its obligations under the 1951 Convention
relating to the Status of Refugees (1951 Convention) and its
1967 Protocol (Protocol). Under the 1951 Convention and its
Protocol, no contracting state may ``expel or return
(`refouler') a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.''
\8\
The Chinese government classifies all North Koreans who
enter China without documents as illegal economic migrants
without making any effort to determine whether or not they are
refugees, and claims that it must return them to the DPRK. In a
June 19, 2007, press conference Ministry of Foreign Affairs
press spokesperson Qin Gang repeated China's longstanding
insistence that these migrants ``came to China for economic
reasons and they are not `refugees' at all.'' \9\ In addition,
the Chinese government bases its policy of repatriating North
Koreans on a 1961 treaty with the DPRK and a series of
protocols on border management signed by the two countries in
1986 and 1998.\10\ But China is also obligated under Article 3
of the Convention Against Torture not to forcibly return any
person to another state where there are substantial grounds for
believing that he or she would be in danger of torture.\11\
Under the general international legal principle of non-
derogation, China's bilateral commitments with the DPRK should
not supersede China's international obligations under the 1951
Convention, its Protocol, and the Convention Against
Torture.\12\
Moreover, the treatment these refugees receive upon their
repatriation to the DPRK provides more than ample evidence that
they satisfy the definition of refugees under international
law. The 1951 Convention defines a refugee as someone who,
``owing to well-founded fear of being persecuted for reasons of
race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country.'' \13\ In a 2005
report, the UN Special Rapporteur on Human Rights in North
Korea noted that even North Koreans who have crossed into China
for reasons of livelihood are nevertheless ``refugees sur
place,'' a designation for those who ``did not leave their
country of origin for fear of persecution, but who fear
persecution upon return.'' \14\
The DPRK government imprisons, tortures, and executes
repatriated North Koreans, and has increased the punishment for
border crossers since late 2004. Article 233 of the amended
North Korean Penal Code provides for up to two years'
imprisonment for citizens who leave the DPRK without
permission, and Article 62 provides for no less than five
years' imprisonment for defectors, and life imprisonment or
execution for defectors deemed to have committed ``an extremely
grave offense.'' \15\ According to international NGOs, North
Koreans are considered to have committed a more serious
offense, and are punished more harshly, if they have converted
to Christianity or have met with Christian missionaries, South
Koreans, or other foreigners while in China.\16\ In late 2004,
the North Korean government changed its policy toward
repatriated border crossers to increase prison sentences from
several months to several years and to detain them in regular
prisons, which have harsher regimes, rather than labor
camps.\17\ Defector testimonies document cases of beatings,
forced labor, lack of food and medicine, degrading treatment,
torture, and execution.\18\ Pregnant female defectors have
reportedly been subjected to forced abortions under poor
medical care. According to a South Korean Bar Association
study, defectors have also reported witnessing North Korean
authorities carry out forced abortions.\19\
The Chinese government blanketly asserts that North Korean
migrants are not refugees, and does not permit individual
petitions for asylum. The government also denies the UN High
Commissioner for Refugees (UNHCR) and other organizations the
access needed to evaluate their claims. Chinese guards posted
outside the UNHCR office and foreign embassies in Beijing block
access to North Koreans who seek to present refugee
petitions.\20\ The government's failure to allow for a process
in order to evaluate whether individual North Koreans have
reason to fear persecution upon return to the DPRK contravenes
its obligations under the 1951 Convention and its Protocol, as
identified by the U.S. Committee for Human Rights in North
Korea: ``Implicit in the Convention--the strict Article 33
prohibition read together with the multi-pronged Article 1
refugee definition--is a requirement that states take
appropriate steps to determine whether an individual is a
refugee before sending him or her back to possible
persecution.'' \21\ This refusal of access by the UNHCR also
contravenes Article 35 of the 1951 Convention.\22\
The government fines and imprisons Chinese citizens and
international humanitarian workers who assist North Korean
refugees, and these penalties have recently been increased. In
2006, Chinese authorities sentenced Hong Jin-hee, Kim Hong-
kyun, and Lee Soo-cheol, three South Korean citizens and former
North Korean defectors, to seven, five, and two years'
imprisonment, respectively, for assisting North Koreans in
China to seek asylum in a third country. Chinese authorities
detained Kim and Lee in Beijing in October 2004, and Hong in
Shenyang in November 2004, and have held the three without
trial until their sentencing in 2006.\23\ In November 2006,
authorities in Yantai city, Shandong province, released on
parole Choi Yong-hoon, a South Korean citizen imprisoned for
assisting North Koreans in China to seek asylum in South Korea,
after Choi served 3 years and 11 months of his 5-year
sentence.\24\
The Chinese government is reportedly in the final stages of
drafting a Regulation on the Administration of Refugees.\25\ A
June 2007 report in the official People's Daily said that ``the
government draft national refugee regulation [is] now in its
final phase,'' but that ``[i]t is unclear when the draft will
be submitted to the State Council for final review and
approval.'' The report also mentions the UNHCR role in
``helping . . . [to] draft'' the regulation.\26\ In March 2006,
the UNHCR said that his office would be involved in insuring
that the regulation is in compliance with international
law.\27\ The drafting process for these regulations provides
Chinese officials with an opportunity to carry out a long
overdue reassessment of their refugee policies to make them
accessible and transparent, providing every refugee with a
chance for a legal hearing and an appeal if necessary.
Health
MENTAL HEALTH
In December 2006, the Beijing Municipal People's Congress
issued a new Regulation on Mental Health. On its face, the new
regulation prohibits local police from arbitrarily detaining
the city's mentally ill as Beijing prepares to host the 2008
Summer Olympic Games.\1\ Under the new regulation, which went
into effect in March 2007, public security officials may remove
a mentally ill person to a mental health center only if that
person ``harms or poses a serious threat to public safety, a
person's life, or property.'' \2\ The precise meaning of these
words and how they are to be interpreted remain unclear.
The new regulation requires that at least two mental health
doctors make determinations of medical necessity for
involuntary hospital admission. It also provides for review of
involuntary admission by a review body. On these points the
regulation is not dissimilar from the UN Principles for the
Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care.\3\ However, while the UN
Principles provide that the review body complete its review
``as soon as possible'' and ``in accordance with expeditious
procedures,'' the Beijing regulation requires that the review
be completed ``within three months''--a period of time that
could accomplish the purpose of removing persons from the
streets for the duration of the 2008 Olympic Games (August 8-
24, 2008) or longer, without violating the letter of the
law.\4\
HIV/AIDS
Many international experts concur that over the past five
years, the Chinese central government's policies to combat the
spread of HIV/AIDS have, in general, progressively
strengthened. On this issue of importance to China's leaders,
however, the government's worries about uncontrolled citizen
activism and foreign-affiliated nongovernmental organizations
(NGOs) have limited their policies potential effectiveness.
During its best periods, the government has developed a set of
policies and laws and committed funding, and in limited but
important ways engaged international groups and its own NGO
community. China's HIV/AIDS policy has also demonstrated
unusual openness to working with marginalized communities such
as migrant workers, the homosexual community, women and men
used in prostitution, and drug users. Due to these efforts and
the increase in the use of anti-retroviral drugs, the death
rate has reportedly decreased in recent years.\5\
China recorded its first AIDS case in 1989,\6\ and by mid-
2002, official Chinese government and UN figures estimated that
between 1 million to 1.5 million people were infected with
HIV.\7\ Recent UN figures estimate there are about 650,000
people living with HIV in China today, but experts believe this
estimate to be low on account of changes in estimation
methodology and procedures.\8\ While China is a country with a
low prevalence of the disease nationwide, health experts say
the disease is moving into the general population, with most
new infections being spread sexually, followed by drug use.\9\
China reported 18,543 new cases of HIV in the first six months
of 2007, which is approximately the number of cases for all of
2006.\10\ Health officials calculate that there were on average
200 new cases of HIV/AIDS infection in China each day in
2005.\11\
In 2007, China announced plans to spend 960 million yuan
(US$127 million) on anti-retroviral drugs, expand public
education, and conduct outreach to China's marginalized
homosexual community.\12\ The government also expanded policies
to further incorporate foreign governments, international
companies, grassroots
organizations, and trade unions in its efforts to combat HIV/
AIDS. In January 2007, the government, along with the
International Labor Organization and the All-China Federation
of Trade Unions, initiated a program that made HIV/AIDS
education available in the workplace.\13\ Privately owned
Chinese firms are also gradually becoming involved in these
efforts, often at the request of their foreign business
affiliates.\14\ In addition, the U.S. Department of Labor
initiated a $3.5 million grant to support a program that
focused on migrant workers.\15\
Nonetheless, while national officials have emphasized the
importance of combating HIV/AIDS, it is local implementation
that determines whether national-level commitment and policy
action produce outcomes of consequence on the ground.
Implementation remains highly problematic. Fear of the disease
has led some local officials to harass persons with HIV/AIDS
and their advocates.\16\ Henan province, where a large number
of villagers contracted HIV through unsanitary blood collection
practices in the late 1980s and early 1990s, provides a
particularly stark example:
In June 2003, public security officials, aided
by local residents, raided Xiongqiao village, an ``AIDS
village'' in Henan, and destroyed property, assaulted
residents, and arrested 13 villagers. Villagers had
appealed to local officials to receive previously
promised government assistance for AIDS patients.\17\
In May 2004, several people living with HIV/
AIDS in Henan were detained for more than a week,
apparently for seeking
assistance from provincial officials to compel local
officials to provide promised assistance.\18\
In 2005, a U.S. NGO reported the violent
closure of a privately run orphanage for children with
AIDS in Henan, and another U.S. group noted that local
officials in Henan have organized militias to prevent
journalists and NGO observers from visiting AIDS
patients.\19\
In November 2005, public security officials
detained activist Hu Jia, co-founder of two HIV/AIDS
advocacy groups, when he attempted to deliver a
petition on behalf of more than 50 AIDS patients to
Vice Premier Wu Yi at a November 2005 AIDS
conference in Henan. Citing government pressure, Hu
subsequently resigned in February 2006 from one of the
groups, Loving Source, and is currently under
residential surveillance.\20\
In November 2006, public officials detained
HIV/AIDS advocacy group leader Wan Yanhai, forcing him
to cancel a conference on AIDS, blood-transfusion
safety, and legal human rights.\21\
In February 2007, public security officials in
Zhengzhou city, Henan, placed AIDS activist and doctor
Gao Yaojie under surveillance at her home in an attempt
to prevent her from traveling to the United States to
accept a human rights award.\22\ Central government
officials intervened, and Gao was subsequently granted
permission to travel to the United States to receive
the 2007 Vital Voices Global Women's Leadership Award
for Human Rights on March 14.\23\
The depth of the crisis is only magnified by official
corruption. In July 2007, the Ministry of Health (MOH)
announced the removal of a director of a Guangdong province
blood center as a result of his involvement in illegal blood
sales and noted that six other people had received sentences of
between 6 and 18 months for helping individuals repeatedly sell
their blood using fake identity cards.\24\ In the hopes of
reducing illegal blood trade activity, the MOH has announced
that blood collection centers are required by the end of
October 2007 to set up equipment to videotape plasma
collections.\25\
A government advisor on AIDS policy has expressed concern
that China's efforts to combat the disease have stalled and
that funding, which in 2006 was 3 billion yuan (US$388
million), remains inadequate.\26\ The government's commitment
to provide care to specific subpopulations, such as children
orphaned as a result of AIDS and ethnic minorities infected
with HIV, appears to be wavering.\27\ Sensitive issues, such as
compensation for rural residents in central provinces who
contracted HIV from the sale of blood, have hindered broader
efforts to combat HIV/AIDS.\28\
At the local level, an overburdened, underfunded healthcare
system makes it difficult for governments to provide the
necessary prevention and treatment programs. Many programs lack
sufficient numbers of qualified doctors to properly administer
anti-retroviral drugs and to help patients maintain needed
treatment, with the result that many patients simply drop out
of the programs. Public education and awareness efforts have
not fully succeeded: 66 percent of China's population
reportedly continues to be unaware of how to protect themselves
against HIV.\29\ AIDS patients have also been discriminated
against and denied treatment at hospitals.\30\
WIDESPREAD DISCRIMINATION AGAINST HEPATITIS B CARRIERS
China has a high rate of hepatitis B virus (HBV) infection,
with 120 million carriers of the virus, who make up
approximately 30 percent of the 400 million HBV carriers in the
world.\31\ Only 70 percent of China's population has been
vaccinated for the disease. In an attempt to reduce hepatitis B
infection, the Ministry of Health (MOH) issued the 2006-2010
National Plan on Hepatitis B Prevention and Control, with the
top priority of strengthening vaccination programs, especially
among young children. The goal is to lower the infection rate
to 1 percent among those five years old and younger, and to
less than 7 percent nationwide by 2010.\32\
Until 2004, there were no national laws protecting HBV
carriers from discrimination in the workplace, and some central
and local governments prohibited the hiring of people with
certain varieties of the disease.\33\ In April 2003, when
university student Zhou Yichao was denied a public service job
because he was an HBV carrier, he stabbed two officials in
Zhejiang province, killing one. Zhou was later sentenced to
death on murder charges.\34\ This incident helped to spark
discussion over the treatment of HBV carriers. In November
2003, HBV carrier Zhang Xianzhu of Anhui province successfully
sued a government personnel office, complaining that his job
application had been unjustly rejected. A court held in April
2004 that the personnel office applied the regulation
incorrectly, but did not invalidate the regulation itself, and
also denied Zhang's request to be reconsidered for the civil
service position, noting that the recruitment season had
already ended.\35\ This was the first partially successful
administrative lawsuit regarding discrimination against HBV
carriers in the workplace.
In 2004, the National People's Congress (NPC) Standing
Committee amended the Law on the Prevention and Control of
Infectious Diseases to prohibit discrimination against persons
with
infectious diseases, persons carrying a pathogen of an
infectious disease, and persons suspected of having an
infectious disease.\36\ In January 2005, the Ministry of
Personnel and the MOH revised
national standards to allow HBV carriers who do not exhibit
symptoms of the disease to apply for employment with the
government.\37\
Yet discrimination against HBV carriers remains widespread.
Even though experts and Chinese officials have publicly stated
that hepatitis B is not infectious in most work and school
situations, many people believe that it is and refuse to hire
HBV carriers or interact with them on those grounds.\38\ A 2005
China Foundation for Hepatitis Prevention and Control survey,
covering 583 hepatitis B patients in 18 provinces, found not
only that a majority of Chinese physicians do not have adequate
knowledge of hepatitis B or of ways to prevent and treat the
disease, but also that 52 percent of the respondents had faced
discrimination in employment and education.\39\ In November
2005, two universities in the Xinjiang Uighur Autonomous Region
(XUAR) suspended 156 students, diagnosed as hepatitis B
positive in their matriculation medical examinations, from
their studies for a year.\40\ Students formed an action group
and distributed fliers to protest this decision, and one
student filed the first hepatitis B discrimination lawsuit in
the XUAR against her university, Xinjiang Agricultural
University.\41\ The student eventually withdrew her case as
university authorities allowed her to resume her studies amid
widespread media coverage, and support from NGOs and concerned
individuals.\42\ As of December 2006, the other students were
reportedly still not able to return to school.\43\
In September 2006, Urumqi municipal education officials in
the XUAR expelled 19 high school students who had tested
positive for hepatitis B.\44\ After first attempting to
petition local government bureaus, seven families later filed a
lawsuit against the municipal education bureau, with the hope
that the students would be allowed to continue their
education.\45\ The Urumqi Tianshan District People's Court
postponed the hearing date on several occasions until it
announced on November 20 that the families had withdrawn their
case. The families' lawyer and a NGO that works on hepatitis B
issues believe that the case was dropped due to pressure from
local officials and employers.\46\ In addition, public security
officials forced Snow Lotus, an unregistered NGO based in the
XUAR, to close in October and discontinue its work for
reportedly drafting open letters on behalf of the students and
breaking the story to the media.\47\ [See Section III--Civil
Society for more information on this case.] Local education
officials maintain that the students were expelled in order to
protect other pupils, yet central officials and experts have
condemned the expulsion.\48\ According to Mao Qun'an, a MOH
representative, ``This is prejudice. All these students can go
to school unless they are sick enough to be hospitalized.''
\49\
Most recently, a 2007 survey on health discrimination in
the workplace found that 49 percent of respondents would be
unwilling to work with HBV carriers, and 55 percent noted that
they would not hire HBV carriers.\50\ Employer screening for
HBV remains common, especially in cities.\51\ A Chinese job
applicant filed a lawsuit against Nokia in March 2007, alleging
that its China branch denied him employment after he underwent
a company medical examination and was found to be a HBV
carrier.\52\ The applicant is claiming 500,000 yuan (US$66,613)
in emotional damages in what is reportedly the first hepatitis
B discrimination case against a foreign multinational company
in China.\53\ The Dongguan People's Court accepted the case in
May, and court proceedings began on August 15 and concluded
with a decision by the judge to select a retrial date.\54\ At
press time, the court has yet to publicly issue a decision or a
retrial date. In some online forums, there is active discussion
of this case, as well as other cases of discrimination against
HBV carriers.\55\
In May 2007, the MOH and the Ministry of Labor and Social
Security issued a non-legally binding opinion to protect the
employment rights of HBV carriers, including a prohibition
against mandatory HBV screening for job applicants, except for
those positions that were previously designated as forbidden
for HBV carriers.\56\ On August 30, 2007, the NPC Standing
Committee adopted the Employment Promotion Law, which
stipulates provisions that could benefit HBV carriers seeking
employment.\57\ For example, Article 30 of the new law
prohibits employers from refusing to hire applicants on the
grounds that they carry infectious diseases, except for those
industries barred to formally certified infectious disease
carriers because of the possibility that they might spread the
disease, and Article 62 allows workers to file a lawsuit
against employers who violate provisions of the new law and
discriminate against employees.\58\ Without the concurrent
creation of effective programs to raise public awareness of how
the disease is spread, incentives for local implementation, and
a clear and comprehensive definition of discrimination,\59\ the
impact of these regulatory measures remains to be seen.\60\
STATE CONTROL OF INFORMATION RELATING TO SARS AND AVIAN FLU
In July 2007, military officials denied Dr. Jiang Yanyong
permission to travel to the United States to receive a human
rights award. Dr. Jiang had previously informed foreign media
of government attempts to cover up the SARS outbreak in
2003.\61\ In addition, Chinese laws still require journalists
to get advance approval before publishing public health
information about broad categories of diseases classified as
``state secrets.''
Chinese public health officials sought to improve their
ability to prevent and control the spread of avian flu by
improving the flow of information between lower officials and
higher officials following the mishandling of the SARS epidemic
in 2003. The State Council issued regulations in November 2005
requiring provincial governments to report ``major'' animal
epidemics to the State Council within four hours of discovering
them, and county and city governments to report cases to
provincial authorities within two hours. Officials who are
found negligent in reporting outbreaks face removal from office
and potential prosecution.\62\
Such laws allow for improved internal channels of
information but do not necessarily guarantee free flow of
information to the public. The Law on the Protection of State
Secrets and implementing regulations in the area of public
health continue to serve as a hindrance to the free flow of
information on public health matters. For example, the
Regulation on State Secrets and the Specific Scope of Each
Level of Secrets in Public Health Work, issued in 1996,
categorize as state secrets information on large-scale
epidemics of viral hepatitis and other diseases that has not
been authorized for public disclosure by the government.\63\ A
new national Regulation on the Public Disclosure of Government
Information, issued in April 2007, contains provisions that
require agencies to disclose information on public health
supervision and sudden emergencies, but these ``state secret''
exceptions remain in place.\64\ [See Section II--Freedom of
Expression.]
HEALTHCARE SYSTEM REFORM
During the 1980s, the government abolished its previous
rural healthcare system, which was based on village clinics
staffed by ``barefoot doctors'' and financed by cooperative
insurance.\65\ The government did not replace the previous
system with a new rural cooperative medical system until
2003.\66\ From 1977 to 2002, the number of doctors in rural
China decreased from 1.8 million to 800,000, and the number of
rural healthcare workers decreased from 3.4 million to
800,000.\67\ Eighty percent of medical resources are now
concentrated in cities.\68\ The rural-urban disparity is also
apparent in mortality statistics. Residents of large cities in
China live 12 years longer than rural residents, and the infant
mortality rate in some rural areas is nine times higher than in
large cities.\69\
Urban Healthcare
The government established a public health insurance
program for employed urban residents in 1998, and by the end of
2006,
approximately 160 million out of the country's 500 million
urban residents received coverage.\70\ In July 2007, Premier
Wen Jiabao announced plans to establish a national health
insurance program to cover all urban residents, including
children, the elderly, and the uninsured, over the next three
years. The central government has selected 79 cities to launch
pilot programs by the end of September 2007.\71\ In order to
improve community-level medical services in urban areas, large
city hospitals will provide facility and staff support to
community health clinics, and a data-sharing system will be
established.\72\
Rural Healthcare
Under China's Rural Cooperative Medical System (RCMS), a
farmer and each family member that participates in the system
pays an average premium of 10 yuan (US$1.25) each year into a
personal medical care account, with governments at all levels
subsidizing an additional 40 yuan (US$5) on average.\73\
Participants may have up to 65 percent of their healthcare
costs reimbursed, but are required to first pay such costs out
of pocket.\74\ The scope of the RCMS's coverage, and government
spending on healthcare, has increased in recent years. The
government reported that the number of counties covered by the
RCMS increased from 687 pilot counties in 2005 to 1,451
counties (50.7 percent of China's rural areas) at the end of
2006.\75\ Prior to implementation of the RCMS, the percentage
of rural residents with health insurance coverage reportedly
reached a low of 7 percent in 2002.\76\ After the RCMS was
introduced in 2003, the government reported that coverage had
increased to 51 percent by February 2007.\77\ The amount of
money the central government has announced it plans to spend on
rural healthcare also increased from 2.073 billion yuan (US$252
million) in 2004 to 5.8 billion yuan (US$750 million) in 2006,
and reportedly to 10.1 billion yuan (US$1.33 billion) in
2007.\78\ Since the establishment of the RCMS, some areas have
reported increases in the number of hospitalized patients and
in the amount of revenue for local clinics.\79\
Rising Cost of Healthcare
Some senior Chinese officials and scholars have questioned
the fairness and efficiency of the medical and healthcare
system. The poorest residents in rural areas frequently do not
enroll in the cooperatives because they cannot afford the
required fee. As many as 50 percent of farmers who fall ill do
not seek healthcare for economic reasons, and half of all
children who die in rural areas had not received medical
treatment.\80\ For rural participants especially, the
reimbursement level remains inadequate. The average
reimbursement rate is 27.5 percent, determined in part by the
specific disease and the local government's budget.\81\ Many
counties and townships do not have the financial resources to
supply their portion of the fund. In addition, rural clinics
are poorly funded and lack adequate medical personnel and
equipment.\82\
High medical costs have become the top concern of Chinese
citizens, according to a 2006 Chinese Academy of Social
Sciences survey on ``Problems that Affect Social Harmony and
Stability,'' with medical expenses comprising 11.8 percent of
an average family's total annual spending.\83\ There has also
been an increase in violent attacks on doctors and hospital
personnel as citizens protest rising costs, medical errors, and
declining professional ethics.\84\ In 2006, hospitals reported
9,831 cases of violence, more than 200 million yuan (US$25.6
million) in damages to hospital facilities, and 5,519 medical
personnel injuries, an increase from 5,093 cases of violence,
67 million yuan (US$8.8 million) in damages, and 2,600 medical
personnel injuries in 2002.\85\
To address some of these issues, the Ministry of Health
relocated approximately 5,500 doctors and nurses from urban
areas to rural areas in 2007 to treat rural patients and train
local medical personnel.\86\ In addition, the central
government has set a goal of renovating 22,000 village clinics,
1,300 county-level general hospitals, 400 county-level
traditional or ethnic minority hospitals, and 950 county-level
maternity and childcare institutes by 2010, and has pledged
more than 20 billion yuan (US$2.5 billion) for the task.\87\
Environment
INTRODUCTION
China's leaders acknowledge the severity of their country's
environmental problems, and the Chinese government has taken
steps to curb pollution and environmental degradation. For
example, the central government has developed an expansive
framework of environmental laws and regulations to combat
environmental problems. Nonetheless, effective implementation
remains systemically hampered by noncompliance at the local
level and administrative structures that prioritize the
containment of ``social unrest'' and the generation of revenue
over environmental protection.
Just as China's environmental policies have not kept pace
with the country's severe environmental degradation, neither
have they kept pace with citizens' aspirations for, and
increasingly vigorous expression of concern over, environmental
health and human rights. During 2007, China's citizens
confronted environmental public policy with an increasing
propensity, not only to voice intense dismay with government
and industry, but also to turn to petitions and mass protests,
and to some extent to the courts, in order to pressure public
officials for greater environmental accountability,
enforcement, and protection.
Participation in environmental protests has risen in the
last two years, particularly among middle-class urban
residents. Their participation is significant because, until
recently, public protest related to environmental issues was
concentrated in rural areas and thought to be a more remote
concern for urban elites. Official responses to environment-
related activism have included crackdowns on the free flow of
information, and the suppression of citizen protest. In part
because these strategies target potential allies instead of
engaging them, further environmental degradation may require
China's leaders to confront the ways these strategies diminish
their capacity to exercise effective environmental leadership
over the long run.
ENVIRONMENTAL DEGRADATION AND PUBLIC FRUSTRATION WITH OFFICIAL
RESPONSES
Rapid economic growth without effective environmental
safeguards has led to severe environmental degradation, with
water, air, soil, and other forms of pollution threatening
public health and quality of life. Poor soil and water
conservation practices and government inattention to polluting
industries exacerbate these problems. Many Chinese citizens
suffer from respiratory diseases, and the State Environmental
Protection Administration (SEPA) estimated that there are
approximately 358,000 premature deaths each year due to air
pollution.\1\ Acid rain affects about one-third of the
country.\2\ Deforestation and erosion leading to loss of arable
land, landslides, and sedimentation of waterways are
widespread.\3\ Water pollution and poor conservation practices
have led to water shortages in many areas, leaving millions in
urban areas, and one-third of the rural population without
access to clean drinking water.\4\
The Chinese government acknowledges the severity of China's
environmental problems. The State Council's White Paper on
``Environmental Protection (1996-2005),'' issued in June 2006,
notes that ``the contradiction between economic growth and
environmental protection is particularly prominent'' as the
``relative shortage of resources, a fragile ecological
environment, and insufficient environmental capacity are
becoming critical problems hindering China's development.'' \5\
Senior government officials also acknowledge the public protest
that severe environmental degradation could prompt.\6\ A U.S.
expert has observed that environmental degradation and
pollution ``constrain economic growth, contribute to large-
scale migration, harm public health, and engender social
unrest.'' \7\ According to official Chinese estimates,
environmental degradation and pollution cost China an estimated
8 to 12 percent of annual gross domestic product (GDP), and the
number of mass protests over pollution has increased by 29
percent per year in recent years.\8\
China has taken steps to curb pollution and environmental
degradation. In both its 10th (2001-2005) and 11th (2006-2010)
Five-Year Plans, the government formulated or revised
environmental protection laws, administrative regulations, and
standards, and has worked to strengthen enforcement of anti-
pollution rules.\9\ In addition, SEPA and the Ministry of
Health (MOH) are working together to facilitate the sharing of
information resources, and to develop a national action plan
and implementation measures on environmental health.\10\ As
described below, for some incidents that have captured public
attention, central and local governments have imposed
administrative penalties on polluters and public officials
responsible for enforcement failures.
Nonetheless, although the central government has issued
numerous environmental laws and programs, effective
implementation has been beset by problems that are fundamental
and widespread. Local environmental protection bureaus (EPBs)
depend on local governments for resources and funding, and
submit to political control by local Party Committees. In part
because local governments (and some officials) derive income
from local enterprises, some local EPBs receive pressure to
engage in weak or selective enforcement. Even without such
pressure, officials in underfunded EPBs have incentives to
permit polluting enterprises to continue operating in order to
preserve revenue used to finance their bureau's operating
deficits. Shortages of well-trained environmental personnel,
loopholes in the law, and weak interagency coordination
contribute to an incentive structure that favors economic
growth over the rigorous implementation and enforcement of
environmental protection measures.\11\
China's serious air, water, and soil pollution problems
have emerged in recent years as one of the country's most
rapidly growing sources of citizen activism. For example,
SEPA's Minister Zhou Shengxian stated in July 2007 that the
number of citizen petitions received by SEPA in the first five
months of 2007 grew by 8 percent over the same period in 2006.
Moreover, the number of pollution-related ``mass incidents''
(China's official term for protests)
increased during a year when officials claimed that overall
mass incidents decreased significantly.\12\ These numbers
reflect, in part, Chinese citizens' willingness, prompted by
rapidly rising frustration with the government's failure to
rein in environmental degradation, to stand up for the
environment, and for their rights.\13\
In its 2006 Annual Report, the Commission reported that
central government officials delayed some of the proposed
hydroelectric dams on the Nujiang (Nu River) in response to
environmental concerns from civil society groups.\14\ As of
February 2007, some villagers have already been resettled in
advance of the Liuku dam, one of four approved dams, and there
have been concerns over inadequate relocation compensation.\15\
Local residents around the site of the proposed Lushui dam,
which has not been approved, have observed laborers engaging in
survey work on the dam. Other villagers have limited knowledge
of the proposed dams being built in their vicinity.\16\ This
continued lack of transparency limits public involvement and
violates the government's own environmental protection laws and
policies.\17\
In a nationwide campaign that inspected 720,000 enterprises
in 2006, the government reported that 3,176 polluting
enterprises had been closed, and SEPA reported 161 pollution
accidents in 2006.\18\ Administrative litigation and
administrative reconsideration remain avenues for environmental
dispute resolution and private enforcement, but attention in
2006-2007 turned to a rise in the form of ``high-impact''
litigation, particularly in cases involving compensation for
the health impacts of environmental pollution. Although the
government prevails in the majority of cases, experts have
noted that high-impact cases often prompt an official response,
typically in the form of new administrative rules and Party
directives, even when plaintiffs lose.\19\
Promotion of rural officials for a long time has been tied
to their record of containing social protest. For example,
``(L)ocal officials will only be promoted to more senior
positions if they can minimize social unrest in the
countryside,'' according to a senior Party official.\20\ These
officials choose either to confront the underlying
environmental problem or to suppress activists.\21\ Previously,
experts have noted that rural residents tended more frequently
than urban residents to engage in ``large-scale'' protests over
environmental issues.\22\ Events in 2007, however, suggest that
this impression may now be outdated, as the urban middle class'
supposed preference for non-confrontational approaches gave way
to a rise in urban environmental activism. Mass protests in
Xiamen over the construction of a chemical plant in June 2007
and protests shortly thereafter in Beijing over the building of
a garbage incineration power project signal some of the first
large-scale protests in urban areas by middle-class citizens
over environmental pollution. These protests are significant
because they suggest that middle-class urban residents regard
alternative methods for pollution prevention and health
preservation as inadequate.
Chinese citizens concerned with environmental issues are
increasingly organized. There are now an estimated 4,000
registered and unregistered environmental nongovernmental
organizations (NGOs) nationwide.\23\ In recent years, these
NGOs have broadened their focus beyond initial efforts at
public education and awareness to assisting pollution victims
in pursuing redress through the legal system, and mobilizing
public participation in and support for environmental
protection.\24\ SEPA has sought public support for and
participation in environmental protection work and has, to a
limited extent, encouraged and supported environmental NGO
activism. In 2005, SEPA held a public hearing to encourage
citizen
interest and NGO activism,\25\ and in February 2006, it
released two provisional measures on public participation in
Environmental Impact Assessment (EIA) procedures. These
measures are the first to contain specific arrangements and
procedures for public involvement in environmental issues.\26\
Since the release of the provisional measures, approximately 43
projects with a value of 160 billion yuan (US$20.5 billion) in
investments have been halted for violating EIA procedures.\27\
In an effort to increase transparency, SEPA issued a
regulation in April 2007 on environmental information
disclosure, coinciding with the State Council's issuance of the
Regulation on the Public Disclosure of Government Information.
[See Section II--Freedom of Expression.] The SEPA regulation
lists 17 categories of government information that should be
made public either through government Web sites, local
newspapers, or upon request. Firms may voluntarily disclosure
information in nine categories and are obligated to disclose
information when they violate standards or cause an
accident.\28\
In spite of this apparent support for limited citizen
activism by SEPA, official efforts to increase control over
environmental civil society groups during the past two years
have had a chilling effect on citizen activism. During 2006-
2007, the Commission has observed numerous official actions to
repress citizen activism and organizers that work on
environmental or environmental health issues:
Fu Xiancai, who has protested forced
resettlement of citizens during the construction of the
Three Gorges Dam project, gave an interview with a
German television station in May 2006. A public
security official interrogated Fu about the interview
in June 2006, and shortly thereafter an unidentified
assailant attacked Fu. The attack left Fu paralyzed
from the shoulders down.\29\ The official investigation
into the assault concluded in August 2006 that Fu's
injuries were self-inflicted.\30\
Environmental activist Tan Kai was detained in
October 2005 for his involvement in the environmental
group ``Green Watch'' and was tried in May 2006 on
charges of illegally obtaining state secrets. In August
2006, Tan was sentenced to 18 months' imprisonment and
was reportedly released in April 2007.\31\
After activist Sun Xiaodi was awarded the
Nuclear-Free Future Award in December 2006, officials
have intensified their harassment efforts. Sun has
spent more than a decade petitioning central
authorities over radioactive contamination from the No.
792 Uranium Mine in the Gannan Tibetan Autonomous
Prefecture in Gansu province. Sun has protested illegal
mining allegedly carried out by local officials that
has resulted in an unusually high rate of cancer and
other health problems for residents in the area. In
February 2007, Sun traveled to Beijing to seek further
medical consultation and treatment of a tumor in his
abdominal cavity.\32\ In July 2007, the State
Security Bureau in Beijing reportedly ordered Sun to
leave Beijing.\33\
------------------------------------------------------------------------
Case: Human Rights Abuses and Intolerance of Environmental Activism
-------------------------------------------------------------------------
Background
Wu Lihong, a 39-year old sound-proofing equipment salesman turned
environmental activist, has spent the past 17 years documenting the
pollution in Taihu (Lake Tai) in his hometown of Yixing city, Zhoutie
township, Jiangsu province, in the hopes of pressuring local officials
and factories to stop the pollution and clean up the lake.\34\ Wu
notes, ``My wish is that the lake will return to the lake of my
childhood, when the water was safe and we could go swimming in it
without fear.'' \35\ Wu collects physical evidence of pollution in Lake
Tai, such as bottles of dirty water illegally discharged from chemical
enterprises around the area and the local officials whose complicity
exacerbate the situation, and submits this evidence to provincial- and
central-level officials through the xinfang (petitioning) system.\36\
In interviews with foreign media in 2006 and early 2007, Wu remarked
that ``It is shameful that we can't drink from the lake. The chemical
factories and local government officials should be blamed. I want them
to admit their responsibility so we will have clean drinking water
again. . . . The corruption is severe. Some local officials are only
after profits so they will do anything to protect their interests, even
if it means flouting environmental standards and allowing polluting
factories to operate.'' \37\ His strategy of bypassing local officials
and filing petitions with provincial- and central-level officials
seemed to have worked in part: more than 200 polluting factories have
been closed since the mid-1990s. Local officials, such as the director
of Yixing's EPB, give a different assessment, ``He is only interested
in filing reports to officials above us. If you want me to commend him
. . . sorry, I can only say I will not do that.'' \38\
Due to his environmental advocacy efforts, local government officials
have repeatedly harassed Wu and his family members, even though a panel
of judges from the People's Political Consultative Conference and the
National People's Congress named him one of China's top 10
environmentalists in November 2005.\39\ According to foreign media
interviews with him and his wife, Xu Jiehua, Wu lost his job after his
manager was warned by local officials to fire him and in 2003, he was
beaten on three occasions by local thugs. In addition, his daughter
reportedly received threats over the phone from anonymous callers, and
his wife lost her job in 1998, after the chemical factory where she was
employed closed in response to one of his reports.\40\
Official Mistreatment in 2007
April 13, 2007: Shortly before Wu planned to provide central officials
in Beijing with new evidence against local officials, Yixing public
security officials detained Wu, accusing him of blackmail and
extortion.\41\ Officials at the Yixing Detention Center restricted his
ability to see his lawyer or family, and his lawyer reported evidence
of torture when she met with him a month later.\42\
May to June 2007: Outbreaks of green-blue algae in Lake Tai left
millions of residents in a rush to purchase bottled water. The central
government's main news agency, Xinhua, largely attributed the outbreaks
to pollution.\43\ In June, Premier Wen Jiabao ordered a formal
investigation into the algae growth, noting that despite numerous
attempts to improve the quality of the water, ``the problem has never
been tackled at the root.'' \44\ State-controlled media and experts
criticized local officials for blaming the problem on natural
conditions, such as a warm climate, and for not taking effective steps
to control pollution in Lake Tai.\45\
June 2007: The Yixing People's Court charged Wu with blackmail and
allegedly extorting 55,000 yuan (US$6,875) from enterprises in exchange
for not exposing them as polluters.\46\ Wu's original trial date was
scheduled for June 12, but was postponed to allow a medical
investigation of his wounds in response to a complaint filed by his
lawyer.\47\
August 10, 2007: The Yixing People's Court sentenced Wu to three years'
imprisonment for fraud and extortion, and ruled that there was no
evidence of torture.\48\ Wu was also fined 3,000 yuan (approximately
US$400) and ordered to return the money he allegedly extorted from
enterprises.\49\ Xu Jiehua has taken on her husband's cause by suing
SEPA for naming Yixing a model city. The Yixing People's Court
reportedly refused to consider the case.\50\
A System of Policy Implementation That Relies on the Abuse of Rights
Even though national leaders have publicly called on China's citizens to
report misbehavior by members of the Communist Party, Wu Lihong's
detention and imprisonment underscore the problem that activists are
not afforded adequate whistleblower protections, but instead are
singled out for harassment, and left vulnerable to revenge by the
officials whose malfeasances they bring to light.\51\ Effective
implementation of China's announced commitment to environmental
protection requires information, private initiative, and citizen
leadership.\52\ Wu's imprisonment illustrates the extent to which
China's leaders have structured political and legal affairs in ways
that impose risks on citizen activists.
According to Xinhua, the central government demanded that officials
close several hundred factories near Lake Tai in June 2007. Officials
also required 20,000 chemical plants in the Lake Tai area to meet
tougher standards for sulfur dioxide emissions and water pollution.
Plants that fail to meet the new standards by the June 2008 deadline
risk suspension or closure. In addition, cities around Lake Tai must
establish sewage treatment plants and can no longer discharge untreated
sewage into the lake and rivers in the area. Existing plants must
install nitrogen and phosphorus removal facilities before the deadline.
In July 2007, senior provincial officials in Jiangsu instructed local
officials to make combating pollution in Lake Tai a priority, even if
it meant a 15 percent decrease in the province's GDP.\53\ At the time
of this writing, Wu Lihong remains in prison.
------------------------------------------------------------------------
CHALLENGES OF BUILDING BUREAUCRATIC CAPACITY AND OVERCOMING
OBSTRUCTIONISM
Local EPBs are frequently unable or unwilling to carry out
many of the numerous environmental laws and regulations passed
by the central government. Strengthening local level EPB
funding and enforcement capacity has been a significant
challenge. Some local EPB offices rely upon income from fines
to fund operating budget deficits, which in turn provides
incentives for lax enforcement of environmental measures.\54\
China continues to delay publication of its 2005 Green GDP
report due to bureaucratic wrangling and pressure from local
governments. The report has already been drafted but has now
been ``indefinitely postponed.'' The report's release would
have symbolized growing environmental transparency as it would
have provided the public and Chinese and international NGOs
more
detailed information than the first Green GDP report in 2004.
The 2004 report sparked controversy by estimating that China's
economic losses from environmental degradation amounted to
511.8 billion yuan (US$67.7 billion), or approximately 3.1
percent of China's entire GDP.\55\ Local governments reportedly
opposed the
report's publication because it contained detailed data on
environmental performance and conditions broken down by
province.\56\ SEPA and the National Bureau of Statistics also
reportedly disagreed over what information to include and how
to disseminate that information.\57\
The Chinese government reportedly pressured the World Bank
to remove material from a joint report, including the figure
that some 750,000 people die prematurely in China each year due
to air and water pollution.\58\ China's Ministry of Foreign
Affairs has denied this charge.\59\ Several news accounts
reported, however, that the Chinese government impugned the
report's methodology, calling it ``not very reliable,'' and
voiced concern that it might spark citizen protest if
released.\60\ SEPA's Vice Minister Zhou Jian noted that ``It's
a very complex issue to analyze the impact of pollution on
human health. Without a common scientific methodology in the
world, any survey on environment and health is not
persuasive.'' \61\
In 2007, China finally issued punishments to those found
responsible for the November 2005 Songhua River benzene spill
that threatened the Chinese city of Harbin and the Russian city
of Khabarovsk. As the Commission noted in its 2006 Annual
Report, the coverup of the Songhua spill demonstrated a lack of
transparency which, in turn, hampered the government's ability
to respond to the environmental disaster. In its aftermath,
despite steps to improve local reporting to higher authorities,
the central government did not address the larger issue of
government control over the news media [see Section II--Freedom
of Expression]. In
November 2006, the State Council supported administrative
punishments and Party disciplinary punishments, but no criminal
prosecutions, for 14 state-owned company and local government
officials involved in the Songhua incident.\62\ SEPA imposed
the maximum fine on the state-owned Jilin Petrochemical Company
as administrative punishment for its role in the incident.\63\
Some Chinese experts assert that SEPA's maximum fines are still
too low to act as an effective deterrent.\64\ A recent draft
revision of the Water Pollution and Control Law may strengthen
and increase punishments for unlawful conduct.\65\
III. Development of the Rule of Law
Civil Society
Under Hu Jintao, the Chinese government has strengthened
policies that restrict the growth of an independent civil
society in an effort to guard against perceived challenges to
state authority and sources of social unrest. In the past five
years, and particularly since 2005, the government has enforced
tighter controls over civil society organizations and has
articulated increasing concern over ``foreign infiltration'' of
these groups. Although the government increasingly has
acknowledged the contributions of civil society networks\1\ and
eased some formal legal requirements governing the operation of
certain civil society groups, these developments have not
translated into greater freedom of association for Chinese
citizens.
The government maintains tight legal controls over the
operation of civil society organizations, though it has taken
modest steps in recent years to loosen some formal legal
strictures. Under the 1998 Regulation on the Management of the
Registration of Social Organizations (Social Organizations
Regulation), groups must register with a civil affairs office
after securing sponsorship from a government or Party
organization.\2\ These restrictive registration requirements
violate the right to freedom of association as defined by
international human rights standards.\3\ Stringent registration
requirements lead some organizations to register as commercial
organizations, undertaking related fiscal requirements, and
others to operate without formal legal recognition.\4\
In March 2007, the Ministry of Civil Affairs (MOCA)
announced that revisions to the Social Organizations Regulation
had been completed and submitted to the State Council for
approval. The revised regulations would allow, for the first
time, international organizations that operate in China to
register with the government.\5\ Although officials have
proposed changing the sponsorship requirement for domestic
organizations,\6\ the revised regulations retain this
provision,\7\ and foreign nongovernmental organizations (NGOs)
that register with the government also would be required to
have an approved sponsor organization.\8\ The 2004 Regulation
on the Management of Foundations (Foundations Regulation) also
retained sponsorship requirements but liberalized some controls
that are still in place for the registration of other social
organizations. The Foundations Regulation lacks a prohibition
on the registration of more than one organization addressing
the same topic within the same administrative region, and it
permits foreign foundations to register.\9\
Despite various restrictions, citizens have been active in
forming civil society organizations. Citizens have formed
organizations to address such issues as HIV/AIDS, women's
rights, worker rights, religious charity work, and the
environment. [For more information on citizen organizations in
each of these areas, see Section II--Health, Status of Women,
Worker Rights, Freedom of Religion, and Environment.] Ministry
of Civil Affairs statistics from 1999 to 2006 indicate an
increase in the number of registered social organizations
starting in 2002. The statistics indicate a total of 354,000
registered civil society organizations in 2006.\10\ Estimates
of the total number of organizations, including unregistered
groups, have ranged as high as eight million.\11\
Government officials often have tolerated the operation of
unregistered groups, but lack of legal status makes the
organizations vulnerable especially where they challenge
government actions or raise issues deemed politically
sensitive.\12\ In November 2006, Shenzhen officials shut down
12 grassroots labor rights organizations that were working
together to overturn a regulation
concerning labor arbitration fees.\13\ Chinese authorities also
have monitored the activities of health activist groups,
especially HIV/AIDS awareness organizations. In October 2006,
Xinjiang Uighur Autonomous Region officials shut down the
Xinjiang Snow Lotus AIDS organization after the group
publicized the expulsion of 19 middle school students diagnosed
as hepatitis B carriers.\14\ In addition, some citizens who try
to establish organizations in politically sensitive areas have
faced imprisonment. This past year, authorities detained or
gave prison sentences to a number of citizens in Zhejiang
province who were reportedly members of the China
Democracy Party (CDP),\15\ including Zhang Jianhong\16\
(inciting subversion), Chen Shuqing\17\ (inciting subversion),
Lu Gengsong\18\ (inciting subversion), and Chi Jianwei\19\
(using a cult to undermine implementation of the law).\20\ In
addition, in May 2006, a court sentenced Yang Tongyan (whose
pen name is Yang Tianshui) to 12 years in prison, also on
subversion charges, for criticizing the government online and
attempting to form a branch of the CDP.\21\
Chinese officials have expressed particular concern in the
last year over the influence that civil society organizations
have on the course of political development in China. Central
and local officials not only tightened existing controls over
many of these organizations, but also engaged in selective use
of laws to provide a legal pretext for shutting them down. The
government set up a task force in 2005 to strengthen monitoring
of NGOs.\22\ A 2005 academic article in a publication linked to
the State Council called for preventing ``[W]estern countries
from carrying out infiltration and sabotage of China through
political NGOs,'' expressing a sentiment about Western NGOs
echoed elsewhere among officials.\23\ Since 2005, the
government has been auditing the funding sources of domestic
NGOs and investigating their personnel. Targeted groups include
those receiving funding from foreign sources and those with
influence among migrant workers.\24\ International NGOs have
reported that Chinese partners have been pressured by the
government to withdraw from cooperative projects.\25\ In 2007,
the government closed the foreign NGO publication China
Development Brief, which had reported on civil society
developments in China and was preparing to transition to
Chinese leadership. Authorities cited the 1983 Statistics Law
to accuse the publication's English-language editor of
conducting ``unauthorized surveys.'' \26\
The government recently has initiated potentially
beneficial reforms to two particular types of civil society
organizations: rural farmers' cooperatives and charitable
groups. The new Law on Professional Farmers' Cooperatives,
effective July 2007, clarifies the previously ambiguous legal
status of these organizations, which number over 150,000 and
claim some 35 million members.\27\ The law mandates
registration with industry and commerce departments and does
not require the cooperatives to secure sponsorship
organizations.\28\ If implemented fully, the law will improve
cooperatives' access to financial resources.\29\ The MOCA has
been
preparing a draft charity law, which aims to define charitable
activities and standardize the operation of charitable
organizations.\30\ The Ministry of Finance and the State
Administration of Taxation announced a new tax policy in
January 2007 that expands the scope of permitted tax deductions
for charitable giving.\31\
The Chinese government has created space for NGO
participation in delivering certain services, such as poverty
relief, where such activities do not run afoul of government
and Party policy. In January 2007, the State Council's Leading
Group of Poverty Alleviation and Development Office in
conjunction with local officials in Jiangxi province initiated
the second phase of a two-year pilot
poverty alleviation project that marks the first time the
Chinese central government officially has outsourced large-
scale poverty alleviation projects to NGOs.\32\ In Shanghai,
municipal and district government officials have begun to
coordinate with NGOs to provide various social services.\33\
Authorities also have accommodated the social welfare programs
of religion-based NGOs where they suit Party goals. [See
Section II--Freedom of Religion for more information.]
Institutions of Democratic Governance
With more than 70 million members in more than 3.5 million
grassroots organizations nationwide, the Communist Party of
China exercises control over government and society through
networks of Party committees. Party committees are set up at
all levels in government, legislative, judicial, and security
organs; major social groups (including unions); enterprises;
and the People's Liberation Army. Party secretaries chairing
Party committees simultaneously hold corresponding government
positions, retaining final decisionmaking authority on most
issues. Except for a very small number of non-communist
officials in symbolic positions, most leadership positions in
China are held by Communist Party members.
Chinese citizens are formally permitted to directly elect
just three types of governing institutions, all of which are at
the local level: villagers committees in rural areas, residents
committees in urban areas, and local legislatures, called
People's Congresses, at the township and county levels. But the
Party maintains control over these elections by controlling the
lists of candidates, the identity of the electorate, voting
procedures, ratification and announcement of election results,
and many other key aspects of the process. China's National
People's Congress and provincial and municipal people's
congresses are indirectly elected by legislatures one level
down.
The fact that China is a one-party system does not prevent
Party leaders from disagreeing over many major issues, and
central Party leaders often face persistent, tacit resistance
to their policies from ministries and local governments. At the
same time, some Western analysts believe that under Jiang Zemin
and Hu Jintao, a common fear that divisive leadership struggles
could encourage mass uprisings similar to 1989 has increased
the pressure on Party leaders to avoid the bitter factional
battles of the past. This relative unity among the leaders, in
particular their opposition to Western democratization, and has
become a major obstacle to more open discussions of fundamental
political reform.\1\
As the Commission noted in its 2006 Annual Report,
``China's authoritarian one-party system does not comply with
international human rights standards contained in the
International Covenant on Civil and Political Rights (ICCPR).
Article 25 of the ICCPR
requires that citizens be allowed to ``take part in the conduct
of political affairs'' and ``to vote and to be elected at
genuine periodic elections.'' Under General Comment 25 to the
ICCPR, this language requires that:
The right of persons to stand for election
should not be limited unreasonably by requiring
candidates to be members of parties or of specific
parties;
Party membership should not be a condition of
eligibility to vote;
It is implicit in Article 25 that [elected]
representatives do in fact exercise governmental power
and that they are accountable through the electoral
process for their exercise of that power;
An independent electoral authority should be
established to supervise the electoral process and to
ensure that it is conducted fairly, impartially, and in
accordance with established laws which are compatible
with the ICCPR;
Freedom of expression, assembly, and
association are essential conditions for the effective
exercise of the right to vote and must be fully
protected.'' \2\
VILLAGE AND RESIDENTS COMMITTEE ELECTIONS
In 2006-2007, China continued gradual expansion of its
long-running experiment in local-level citizen participation in
village and urban neighborhood affairs. These local-level rural
and urban elections have encouraged greater citizen
participation in local administration, and sometimes result in
rejections of specific local Party leaders. Although election
results provide Party officials with information about popular
attitudes, elections do not represent Communist Party
acceptance of directly elected or representative government.
In a September 5, 2006 interview, Premier Wen Jiabao
rejected further electoral reforms at the township and county
levels in the countryside, stating:
[C]onditions are not yet ripe for conducting direct
election at a higher level of government . . .
Democracy and direct election, in particular, should
develop in an orderly way in keeping with the
particular condition of a country . . . We are
confident that when the people are capable of running a
village through direct election, they will later be
able to run a township, then a county and a province,
true to the principle that our country is run by the
people.\3\
The Ministry of Civil Affairs reported in July 2007 that
villages in all of China's 31 provincial-level jurisdictions
had held at least two rounds of elections since 1998, when the
Organic Law of Village Committees took effect.\4\ More than 500
million voters in over 624,000 villages have taken part in some
form of village committee election since election experiments
began in 1988, and the Ministry claims an average voter turnout
rate of 80 percent.\5\
During the 2006-2007 election cycle, the poor
administration of elections prompted citizens to take to the
street to protest vote-rigging and other electoral abuses.\6\
Despite numerous Party and government directives calling for a
clean-up, official Chinese reports suggest that ``corrupt'' and
``illegal'' election practices, including ``vote-rigging'' and
``rampant'' bribery, remain widespread, and there is reason to
infer they are getting worse. A senior Ministry of Civil
Affairs official, speaking in July 2007, reported that ``clan
forces and gangsters are gaining ground in some elections'' and
noted cases of ``beating and intimidation of candidates.'' The
same official criticized the lack of a clear definition of
``election bribery'' as a major source of abuses.\7\ Official
Chinese sources have recently suggested that the influence some
village committee officials have over sales of local land
rights and mineral resources, coupled with China's long-running
land and resource price boom, have probably made the incentives
for electoral corruption even worse.\8\
In late 2006, for example, two candidates in the Inner
Mongolia Autonomous Region spent the combined equivalent of
US$82,500 entertaining voters to win a village committee
chief's post that only paid about 10,000 yuan per year (around
US$1,265), according to a Party-owned news magazine. Some
candidates view election bribes as a business expense.\9\ The
official China Daily reported in February 2007 that the Central
Organization Department issued a directive calling for ``severe
punishment'' of those who commit election-related
irregularities. But the same report indicates that
nationwide authorities had prosecuted only 192 officials for
vote-buying and electoral fraud during the most recent round of
village elections over the last year.\10\
Under Hu Jintao, Party officials have been directed to
strengthen their control over village committees and elections.
Scholar Li Lianjiang notes that the powers of these village
committees and their elected leaders have always been ``highly
constrained because appointed village party secretaries remain
by law the `leadership core' of the village.'' This has left
the village committee heads as ``only a lieutenant to the
village party secretary'' who is actually selected by Party
officials in the village or township.\11\ Moreover, the
fairness, competitiveness and openness of these elections have
always varied significantly from region to region. Since 2005
and continuing through the past year, Party leaders in many
areas have endorsed having village Party leaders take ``joint
membership'' and ``concurrent leadership'' of village
committees,\12\ a change that would exacerbate some of the
foregoing problems.
International nongovernmental organization monitors, who
have been involved since the inception in promoting and
monitoring these village elections, have reported that in the
past two years Chinese officials in many localities have
increasingly resisted permitting either Chinese or foreign
observers to monitor the quality, procedural integrity, and
fairness of village elections. The exclusion of these monitors
removes a major disincentive for local officials to commit the
types of irregularities that are already widespread.\13\
Grassroots citizen participation in cities is even more
limited. Since 1999, many cities have experimented with using
elections, rather than direct Party committee appointment, to
select members of urban residents committees or community
residents committees, the lowest level of state power in
China's cities.\14\ Although the percentage of community
residents committees chosen through election appears to be
significantly lower than the percentage of village committees
that are elected, their share is rising. Shenzhen officials,
for example, announced in July 2007 that they would increase
the proportion of elected residents committees from 47
percent to 70 percent during their next term of office.\15\
Although initially most of these committees did not control any
goods or service of value, in the past year, some have asserted
their influence as forums for debating and approving deals
offered by city officials in return for eviction and demolition
of homes in areas slated for renewal.\16\
INTERFERING WITH INDEPENDENT CANDIDATES
In addition to interfering with citizens' right to vote,
local
authorities continued to interfere with citizens' right to
stand for election during the 2006-2007 cycle of township and
county local people's congress (LPC) elections. Official
statistics noted that 900 million county election voters and
600 million township election voters were scheduled to elect
more than 2 million LPC deputies during the July 1, 2006, to
December 31, 2007, election period.\17\ Beijing lawyer and
rights defender Teng Biao reported in late 2006 that more than
20 non-Party, independent LPC candidates were attempting to run
for election in Beijing alone, but that the Party continued to
select the vast majority of candidates.\18\ Teng ultimately
announced his decision to boycott the elections due to Party
control over the election process and government harassment of
independent candidates.\19\
Local authorities reportedly have harassed and taken into
custody independent candidates and supporters who threaten
Party control over the electoral process and candidates. In
some instances, these candidates continue to play an active
role, despite having been targeted for harassment during
previous election cycles.\20\ For example, in November 2006, on
the eve of the current cycle of LPC elections in Qianjiang
city, Hubei province, public security officials took democracy
activist Yao Lifa into custody as he was on his way to campaign
for votes.\21\ Yao had previously been taken into custody in
July 2006, when he attempted to meet with five other
independent LPC candidates to discuss their election campaigns,
and was beaten by unidentified assailants several times in 2005
while educating villagers on the election process. Lu Banglie,
an activist running for reelection in Zhijiang city, Hubei, was
similarly beaten in 2003 for attempting to recall an allegedly
corrupt leader in his village, again in 2005 for his role in
another village's recall campaign, and twice during his own
campaign for reelection in the 2006-2007 election cycle.\22\
The former president of Human Rights in China argued in a
September 2006 article published by the organization that
although many independent candidates may not be elected in the
current election cycle, they play a significant role in serving
as forerunners for civil rights in Chinese society.\23\
PARTY LEADERSHIP SELECTION
Since the late 1990s, the Party has also continued to
experiment with allowing limited citizen participation in the
selection of local Party leaders, particularly at the village
level. Most of these reported experiments involve local Party
officials allowing non-party member citizens to help nominate
candidates for Party offices at the village and sometimes the
township levels, usually followed by an election in which only
Party members may participate.\24\ Party scholars report that
in the past three years these experiments continued in some
areas, but their scale is far narrower than that of either the
village committee elections or the urban community residents
committees.\25\ Local Party officials have been urged to
combine the selection of Party committee leaders with that of
village elections to try to ensure that Party members dominate
both organs. But they are also urged to use popular opinion to
weed out the most unpopular Party officials during the
process.\26\ In a recent major speech discussing political
reform and the Party, Hu Jintao endorsed both expanded popular
participation in government and greater democracy within the
Party, but did not specifically endorse further expanding these
experiments in allowing the public to help choose local Party
leaders.\27\
During 2006-2007 Hu Jintao continued to voice support for
experiments in expanded ``inner-Party democracy,'' or
consultation by Party leaders with lower-level Party
officials.\28\ The Party's Central Organization Department
reports that between 2003 and 2006, about 15,000 Party members
were promoted to leadership positions as a result of elections
within the Party. Of these, about 3,800 were chosen to county-
level positions (an average of a little over one for each of
China's counties) and just over 390 were at prefectural-level
positions. The Party's Central Organization Department
estimates that about 100,000 Party posts at various levels were
filled by elections within the Party during 2006-2007.\29\ With
more than 70 million Party members in more than 3.5 million
grassroots organizations nationwide, this represents a small
experiment confined to lower levels.\30\ However, elections for
delegates to the 17th Party Congress have reportedly been more
competitive than those for the 16th Congress in 2002, with the
number of candidates exceeding the number of delegate slots by
an average of 15 percent across provinces.\31\
Recent discussion within the Party indicates that efforts
to make Party affairs more democratic have faced resistance. A
January 2007 article in the Central Party School's journal
Study Times stressed that Party elections can only strengthen
the Party if they are truly ``democratic,'' and ``impartial.''
Zhang Xiaoyan endorsed several specific procedural steps to
perfect Party elections, including opening up the nominating
process to additional Party members, and having more multi-
candidate elections, including elections with multiple serious
candidates, well known to the local membership.\32\ Official
press sources have carried numerous reports of extreme
corruption in Party leadership selection processes, and even
reports of violence in Party elections. In a February 2007
report, the official China Daily stated that ``the buying and
selling of party and government posts is rampant in China's
countryside.'' \33\ In June 2007, Chinese police reported they
were searching for a former village Party leader in Hebei
province believed to have murdered two new Party committee
members after losing his seat to them in an election.\34\
LOOKING TO THE 17TH PARTY CONGRESS
The Commission will monitor closely and assess the policies
on political reform that are widely anticipated to emerge at
the 17th Party Congress, and notes that the Party Congress may
constitute Hu Jintao's last real chance to advance a sustained
program of political reform in what is expected to be his final
five-year term. As the Party Congress approaches, Party leaders
have been engaging in public and internal discussions over the
relative value of ``inner-Party democracy'' versus a more
``consultative democracy'' that would offer greater
participation to the Chinese public and to members of its eight
legally recognized non-Communist parties. An August 2007
article in the Party-managed national magazine Outlook
(Liaowang) reported that the consensus among official policy
analysts was that ``after the 17th Party Congress, China's
socialist democratic political reforms will move faster.'' \35\
But a June 25, 2007, speech by Hu Jintao was more guarded.
Although he called for ``political structure reform'' and
greater ``democracy within the Party,'' he also continued to
endorse ``democratic centralism,'' long the watchword for
obedience to high-level Party leaders. As for greater
participation for the Chinese people as a whole, Hu endorsed
taking ``active but prudent'' steps in this direction, and
expanding the ``orderly political participation of our
citizens.'' \36\
Access to Justice
INTRODUCTION
Since the early 1950s, the Chinese system has had, at least
on paper, several formal legal institutions and informal,
nonjudicial systems through which citizens could seek justice,
appeal government actions, and exercise oversight of officials.
The oldest and most widely used of these systems allows
citizens to present their grievances to Party and government
offices charged specifically with receiving ``letters and
visits'' (xinfang). In 2006-2007, Chinese leaders continued
efforts begun in 2005 to restructure and formalize the xinfang
system in a manner that they asserted would make it more
responsive, accessible, and fair. Since the 1989 passage of the
Administrative Litigation Law (ALL), citizens have also been
permitted to sue administrative organs of the government
through the courts. Other dispute resolution institutions
include local mediation committees, labor arbitration
committees, and administrative reconsideration organs.
Petitions and citizen administrative suits rose sharply in
number during the 1990s and early 2000s. Some citizens who
avail themselves of these institutions have been successful.
But for many, the last or only resort is public protest, which
officials typically are quick to stifle. Surveys reveal that
many citizens believe it is only the threat of protest that can
help them get the attention of officials and kick-start formal
institutions.
INDIVIDUAL AND GROUP PETITIONS (``LETTERS AND VISITS'')
By far the most commonly used institution through which
citizens may seek redress involves filing petitions through the
``Letters and Visits Offices'' available in nearly all county-
level and higher government offices and in many government and
judicial departments. Official statistics in recent years
indicate that government departments nationwide receive more
than 10 to 13 million such petitions annually, compared with
between 90,000 and 100,000 administrative lawsuits that China's
courts have accepted annually in the past five years.\1\
``Petitions,'' however, are not lawsuits, and their handling is
governed by State Council and other government regulations that
leave citizens with no legal leverage to compel offices to
respond. Citizen-petitioners more often than not find that
institutions to which xinfang offices refer their petitions for
actual resolution of grievances ultimately decline to handle
complaints. The government forbids petitioners to seek
``strength in numbers'' by presenting petitions to xinfang
offices in groups of more than five, although many citizens
ignore this rule and try to pressure officials by petitioning
in groups. Although regulations require offices to which
petitions are referred by the xinfang office to respond within
a specified period of time, they frequently stall indefinitely.
As the Commission's 2004 Annual Report noted, ``the
overwhelming majority of individual petitioners . . . find
themselves lost in a Kafkaesque shuffle from bureau to bureau
and city to city, facing years of red tape without any real
resolution to their problems.'' \2\
In 2006-2007, Chinese officials continued to implement the
State Council's January 2005 regulation on the proper handling
of petitions in a manner aimed to prevent citizens from taking
appeals to Beijing and provincial capitals. The 2005 Regulation
on Letters and Visits instead forces citizens to turn to lower-
level xinfang offices to resolve their disputes. The regulation
does permit citizens who are dissatisfied with the outcome of
the local petition process to then submit their petition to
officials at the next level up in the administrative structure
(for example, allowing a town dweller to submit at the county
level) and, in some cases, two levels up (the city level).
However, xinfang offices at higher levels are ordered not to
accept petitions submitted from more than two levels down the
administrative structure. Under the regulation, government
offices were required to establish ``responsibility systems''
for handing citizen petitions, which link the performance
assessments of public officials to their success in resolving
complaints at their level. The regulation strictly forbids
petitioners from physically organizing groups outside xinfang
offices, or from taking other actions to pressure or threaten
xinfang handlers.\3\
Since at least 2002, central government officials have
maintained confidential rankings of which provinces have the
highest number of petitioners who travel to Beijing or their
own provincial capitals, and have encouraged provincial Party
and security officials to compete to ``improve'' (that is, to
lower) their national ranking. Since at least 2005, Beijing has
rewarded local officials with ``outstanding records'' of
handling petitioners locally, while punishing those whose
disgruntled residents took their cases to Beijing or provincial
capitals more frequently. Local officials continue to dispatch
security officials to stop petitioners en route to Beijing, or
to detain them in the capital and forcibly return them to their
places of residence.\4\
In 2006, Chinese officials continued to declare success in
their efforts to reduce the number of citizen petitions,
claiming a nationwide decrease of more than 15 percent compared
to 2005. Based on official statistics, the total number of
petitions in 2005 was 12.7 million, down from 13.7 million in
2004.\5\ These figures suggest that the total number of
petitions for 2006 was less than 10.8 million. The official
Xinhua news agency has attributed the decline to several
successful policies, including giving local governments
numerical targets for lowering petitions, fining or punishing
local officials with negative performance appraisals if they
missed their targets, and ordering local police officials to
meet with, and listen to, petitioners.\6\
These statistics notwithstanding, throughout 2007, central
government authorities continued to issue directives suggesting
that they do not yet regard local officials' handing of
petitions as satisfactory. In May, a directive on petitions
from the Supreme People's Procuratorate acknowledged that many
``major, complicated, or unclear'' petition cases were not
being handled adequately, and offered citizens the possibility
of holding an open hearing in the event that cases could not
otherwise be resolved.\7\ In June, the Party and State Council
leadership issued another directive suggesting that local
authorities were still not handling petition cases in a
satisfactory manner or devoting appropriate resources to keep
petitioners contained within their local areas. The directive
called on the top local Party leaders in each area to take
personal charge and responsibility for handling petitions, to
provide improved budgets and personnel to petition offices, and
to resolve citizen complaints while keeping them at the local
level.\8\ The directive also indicated that the government
plans to open a national center to maintain information on
petitioning and help address citizen grievances. The center's
exact role and functions remained unclear, especially in light
of the national leadership's directive to keep petition cases
away from Beijing.\9\
Major policy documents and regulations issued in 2005-2007
insist that local authorities should make every effort to
properly investigate and resolve citizen petitions, and demand
that officials not employ harsh or coercive tactics except in
the event that petitioners break the law. Nevertheless, in
2006-2007, widespread
reports continued to indicate that many local officials remain
unwilling or unable to deal with citizen complaints
effectively, and still resort to coercive tactics to try to
cover up cases and prevent petitioners from taking cases to
provincial capitals or to Beijing. Officials in Hubei, for
example, kept a disabled local resident, Ma Wenjun, under 24-
hour guard by a rotating a group of 13 security officials and
threatened to cut off his basic living allowance if he
continued his attempt to take his petition to higher-level
authorities.\10\ In February 2007, a leading expert on protests
and petitions from the Chinese Academy of Social Sciences, the
nation's premier social science research institution, conducted
a survey on the implementation of the 2005 regulation among
1,200 petitioners in Beijing to present their grievances to the
central government. Of those surveyed, 71 percent indicated
that they had suffered greater retaliation or intimidation as a
result of their petitioning at the hands of authorities from
their home region in the past year. Only five percent felt that
their local officials had taken their grievances more
seriously.\11\
Although China's Constitution and Criminal Law in principle
provide ample protection from this sort of official retaliation
against citizen petitioners, official press sources note that
these protections often go unenforced. Article 41 of the
Constitution grants citizens the right ``to criticize and make
suggestions to any state organ or functionary.'' The
Constitution also asserts that ``[N]o one may suppress such
complaints, charges or exposures, or retaliate against the
citizen making them.'' Article 254 of the Criminal Law provides
for imprisonment of any state functionary who abuses his power
and ``retaliates against or frames up complainants,
petitioners, critics or persons who report against him.'' But
legal analysts have criticized many local procurators for
failing to deal with officials who abuse their power to
retaliate against petitioners and other citizen critics.\12\ In
January 2006, the Supreme People's Procuratorate attempted to
pressure local procurators to file such cases by issuing
Interpretation Number 2 (2006), which requires procurators to
file charges in cases in which state personnel retaliate
against or frame up petitioners, complainants and critics.\13\
ADMINISTRATIVE LAWSUITS
Under the 1989 Administrative Litigation Law (ALL),
citizens may file administrative lawsuits through local courts.
A 2004 Chinese Academy of Social Science survey of 632
petitioners who had taken their cases to Beijing revealed that
nearly two-thirds (401) had initially submitted their cases to
local courts. But 43 percent of these reported that the courts
had declined to hear their cases at all, which spurred them to
petition administrative officials.\14\ The number of first-
instance administrative suits accepted by courts nationwide,
which soared from 13,006 cases to 100,921 cases in the 12 years
after the ALL was passed, tapered off between 2002 and 2005
(the most recent year for which data is available), fluctuating
between about 80,000 and 96,000 cases annually.
The President of China's Supreme People's Court, Chief
Justice Xiao Yang, urged local judicial officials in March 2007
to make greater use of mediation and other alternative methods
of dispute resolution in dealing with cases that touch on
issues that could spark public protest. Cases involving rural
land seizures, urban home evictions and demolitions, enterprise
restructuring, labor and social security, resource disputes and
environmental protection cases were among issues Xiao singled
out.\15\
In June, the State Council issued new regulations to
clarify the procedures that citizens and officials must follow
when seeking redress under China's 1999 Administrative
Reconsideration Law, under which more than 80,000
administrative disputes per year are resolved, according to
government statistics. The regulations obligate administrative
departments to accept for reconsideration applications that
meet the law's guidelines. The regulations also strengthen the
authority of higher-level departments to compel lower-level
departments to accept applications that they previously
rejected. The regulations also require administrative
departments to inform citizens of their right to apply for
reconsideration if the department makes an administrative
decision that adversely affects the citizen's interests.\16\
In March, the Supreme People's Court announced the
nationwide expansion of what it deemed to be a successful pilot
program aimed at ensuring ``objectivity'' in administrative
suits, in part by circumventing local Party and government
control of administrative courts. Under the program,
administrative suits would not be tried in the plaintiff's home
jurisdiction, but either in a higher-level court or in a court
outside of the plaintiff's home area. The SPC reports that in
areas where tests were conducted, such changes of venue
resulted in judgments against the defendants--usually a public
official or agency--about two and one-half times more often
than when such cases are handled by the plaintiff's local
court.\17\ As promising as these statistics may be, if the
improvement in the plaintiff's prospects for winning a case
against an official depends on moving the case away from the
official's local judiciary, it underscores the central
government's failure to overcome local Party and government
dominance of court procedures and verdicts.
Throughout 2006-2007, the Party leadership's political
selectivity and ambivalence toward permitting citizens to use
the courts and legal system to seek redress continued to be
manifested in the comments of senior officials. In March 2007,
for example, Party Politburo Standing Committee member Luo Gan,
who heads the Party's Central Political-Legal Committee (which
oversees legal and internal security policies), told a meeting
of administrative law experts that China's system of
administrative lawsuits was ``one of the most effective and
direct legal systems to safeguard the public's rights and
interests,'' and called for the building of a ``fair,
effective, and authoritative system to try lawsuits against
government bodies to guarantee social justice.'' \18\
Yet during the preceding year, the Party and government
repeatedly pressured lawyers to refrain from taking politically
sensitive cases. In early 2006, the All China Lawyers
Association (ACLA) issued a ``guiding opinion'' restricting the
ability of lawyers to handle cases involving representative or
joint litigation by 10 or more litigants, or cases involving
both litigation and non-litigation efforts. The guiding opinion
further instructed law firms to assign only ``politically
qualified'' lawyers to conduct the initial intake of these
cases, and lawyers handling collective cases to attempt to
mitigate conflict and propose mediation as the method for
conflict resolution. Former ACLA president Zhang Sizhi
criticized the guiding opinion as retrogressive and warned that
it would set the country's legal profession back several
decades to the 1980s. In speeches to Party judicial and
internal security officials, Luo Gan has reaffirmed the
responsibility of such Party members to defend the Party's
interests and its leadership over society. He has also attacked
lawyers who take on politically sensitive suits, calling for
``forceful measures . . . against those who carry out sabotage
under the pretext of rights protection . . . so as to protect
national security and the political stability of society.''
\19\
Commercial Rule of Law
INTRODUCTION
China has passed the five-year mark in the implementation
of its World Trade Organization (WTO) commitments. These
commitments are outlined under both the WTO agreements and
China's accession documents,\1\ and require that the Chinese
government ensure nondiscrimination in the administration of
trade-related measures, as well as prompt publication of all
laws, regulations, judicial decisions, and administrative
rulings relating to trade. Over the past year, concerns have
persisted that China continues to deviate from WTO norms in
both law and practice.
Concerns regarding China's uneven implementation of its WTO
commitments pursuant to its obligations as a member of the WTO
have led to multiple WTO challenges against China during
2007.\2\ Weaknesses in China's legal institutions and systems
of policy implementation detailed by the U.S. Trade
Representative (USTR) earlier this year formed the basis of the
United States' August 13, 2007 request that the WTO establish a
dispute settlement panel, in the U.S. case challenging
deficiencies in China's intellectual property rights (IPR)
protection and enforcement regime.\3\ The WTO granted the U.S.
request and established a panel in September 2007. On August
31, 2007, the WTO also granted a U.S. request to form a panel
to review Chinese export and import-substitution subsidies
prohibited by WTO rules.\4\ The United States and Mexico allege
that China's revised income tax law and related tax refunds,
exemptions, and reductions constitute an export subsidy.\5\
The timely resolution of many of these disputes remains a
focus of concern and effort. Throughout 2007, the ways in which
``China's laws, policies, and practices deviate from the WTO's
national treatment principle'' \6\ remained at center stage.
The U.S.-China Business Council and other business interests
kept a coordinated
spotlight on China's inadequate protection of IPR, its
insufficiently transparent legal and regulatory processes, and
its opaque development of technical and product standards that
inadequately address quality issues and tend to favor local
companies.\7\ China's long-protected banking and oil sectors
were opened in accordance with WTO commitments that came due on
December 11, 2006, but concerns remain.
In the area of transparency, important developments during
the Commission's 2006-2007 reporting cycle included China's
solicitation of comments during legislative and regulatory
development (including on the new Labor Contract Law and Tax
Law Implementation Regulations). Comment procedures afford
interested parties some limited opportunities to offer input
prior to implementation. Among those who submitted comments on
the draft Labor Contract Law were U.S. business groups. Some
comments endorsed revisions that would weaken some of the
formal protections written into draft versions of the law,
according to business association, media, and other sources.\8\
Among the aspects of the drafts that concerned these companies
were clauses on hiring and termination procedures, layoffs,
employee probationary periods, the status of temporary workers,
the power of the official trade union, severance pay
provisions, and employee training repayment.\9\ The State
Council's issuance of a new Regulation on the Public Disclosure
of Government Information in April 2007, to take effect in May
2008, is
potentially significant, and the Commission will monitor its
implementation going forward. Also potentially significant is
the issuance by the Supreme People's Court and Supreme People's
Procuratorate's of measures concerning the publication of
judicial decisions and other documents. The Commission also
will be monitoring developments in this area closely. [See
Section II--Freedom of Expression.]
PROTECTION OF INTELLECTUAL PROPERTY
For several years the Commission has noted the widespread
counterfeiting and piracy of intellectual property in
China.\10\ The Commission's 2004 Annual Report concluded that
``only rhetorical progress has been made toward reducing the
extremely high level of intellectual property infringement in
China in the past year and the situation continues to severely
injure U.S. intellectual property industries.'' \11\ In its
2006 Annual Report, the Commission characterized IPR
infringement in China as ``rampant.'' Placing China on its top-
ranked ``Priority Watch'' list, the USTR noted in early 2007
that ``[a]lthough this year's Special 301 Report shows positive
progress in many countries, rampant counterfeiting and piracy
problems have continued to plague China and Russia, indicating
a need for stronger IPR regimes.'' \12\
Reasons for China's weak enforcement of IPR protections
include what some analysts regard as deliberate ``free-riding''
on the international system--China's resistance to introducing
criminal penalties sufficient to deter infringement, and the
high thresholds that Chinese laws and regulations use to
determine the existence of infringement, for example. Reasons
also include structural and local factors that call for
consistent, long-term policy solutions--weak, politicized legal
institutions, for example, and the presence of Party,
government, and military interests that have incentives to
resist the closure of commercial producers of infringing
products because they generate revenues and contribute to local
economies.\13\
From July through October 2006, central government
officials launched a highly publicized ``100 Day Anti-Piracy
Campaign'' sponsored by the Ministry of Culture, the Ministry
of Public Security, and eight other central government
departments.\14\ Chinese authorities reported seizing more than
58 million illegal publications and four pirated DVD production
lines, investigating more than 10,000 cases of IPR
infringement, and sentencing at least two individuals to life
imprisonment.\15\
The campaign targeted not only IPR infringing publications,
but also material published without government permission, and
material containing prohibited political content. Authorities
reported confiscating some 616,000 unauthorized newspapers and
periodicals, according to a People's Daily report citing
information from the Sweep Away Pornography and Strike Down
Illegal Publications Task Force.\16\ But reflected in these
figures were 303,000 publications deemed to ``threaten social
stability,'' ``endanger state security,'' or ``incite ethnic
separatism,'' according to the report. In other words, the
enforcement campaign appears to have been motivated only in
part by the need to address IPR infringements.\17\ Therefore,
official portrayal of the campaign--both in its intent and
results--should be understood from more than one
perspective.\18\
In March 2007, China officially acceded to the World
Intellectual Property Organization (WIPO) Copyright and
Performances and Phonograms Treaties (collectively, the WIPO
Internet Treaties), with its accession formally taking effect
on June 9, 2007. The Commission indicated in its 2004 Annual
Report that China's taking these steps would be interpreted as
a sign of ``concrete progress.'' \19\
On April 4 and 5, China's Supreme People's Court and
Supreme People's Procuratorate issued the Interpretation of the
Supreme People's Court and the Supreme People's Procuratorate
on Several Issues of Concrete Application of Law in Handling
Criminal Cases of Infringing Intellectual Property (II). The
new interpretation, which built upon an earlier December 2004
interpretation of the same name, clarified the thresholds for
prosecution under China's Criminal Law for those who infringe
copyrighted materials, reproduce and sell them on a large
scale. The Interpretation directs, for example, that those
duplicating and distributing 500 or more copies of a piece of
music, videos, books, and computer software or other
copyrighted audio-visual products meet the law's standard for
cases ``involving serious circumstances'' and cases involving
2,500 copies would meet the law's standard for cases
``involving other especially serious circumstances.'' \20\
Notwithstanding these additional measures, China continued
to show what the USTR termed ``unacceptably high'' rates of
piracy and counterfeiting. In its annual Special 301 Report,
issued on April 30, 2007, the USTR noted surveys of copyright
industries that estimate that between 85 and 93 percent of all
copyrighted goods sold in China were, in fact, counterfeit--a
level that constituted no significant improvement over 2005.
The percentage of all IPR-violating goods confiscated by U.S.
Customs agents that were shipped from China actually rose from
2005 to 2006, from 69 to 81 percent.\21\ A 2006 survey of its
members by the U.S.-China Business Council ranked weak IPR
protection as the greatest failing in China's WTO
implementation, and also found that while 33 percent of its
members felt there had been some improvement in China's
enforcement of intellectual property protection over the
previous year, more than half of those polled felt there had
been no improvement.\22\ On the eve of a June 2007 European
Union-China joint trade ministerial meeting, EU analysts noted
that ``China was the source of 80 percent of counterfeit goods
intercepted at the EU borders in 2006. Some European
manufacturers estimated in February 2007 that intellectual
property rights infringement in China cost EU manufacturers
operating there 20 percent of their revenue.'' \23\
Moreover, while China's IPR enforcement remains weak
nationwide, the decentralization of China's legal system means
that enforcement levels vary significantly across provinces and
regions.
Attacks on Internet piracy in Beijing, Xiamen, and Guangdong,
for example have seen some positive results.\24\ Guangdong
remains, however, along with Zhejiang, one of the ``provinces
in which rights holders most consistently encountered all types
of counterfeiting.'' These two provinces, plus Fujian province,
are major ports of lading for infringing products shipped to
the United States.\25\
On April 10, 2007, the United States initiated the first
step in the WTO dispute settlement process by requesting
consultations with China regarding violations of several
provisions of the WTO's Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).\26\ The USTR raised four
major issues. First, U.S. officials contended that the
thresholds for criminal prosecution under China's Criminal Law
and new interpretations remain too high and too vague, still
allowing commercial scale acts of trademark counterfeiting and
copyright piracy to avoid being subject to criminal
prosecution. This is largely because prosecution thresholds are
defined in terms of ``illegal business volume,'' ``illegal
gains,'' and number of ``illegal copies.'' ``Illegal business
volume,'' moreover, is normally calculated based on the lower
price at which the illegal goods were to be sold, not the
higher price that the corresponding legitimate goods would have
fetched, which would permit an infringer to sell more of these
goods without meeting the threshold for criminal
prosecution.\27\ Second, Chinese Customs laws and regulations
regarding intellectual property protection in many cases allow
confiscated counterfeit goods to have their illegal trademarks
and other infringing features removed and be resold rather than
destroyed.\28\ Third, numerous Chinese laws and regulations do
not appear to protect foreign creative works that must undergo
censorship or other forms of pre-distribution review during the
period when they are awaiting clearance by government
authorities, or provide any protection for them if they are
denied government clearance.\29\ Fourth, Article 217 of the
Criminal Law outlaws ``reproducing and distributing'' many
copyrighted works, but does not explicitly address the case of
those who reproduce copyrighted materials without distributing
them, or distribute without reproducing them.\30\ A USTR
spokesperson reported on August 13, 2007 that after three
months of formal consultation with Chinese officials, the
United States felt that the ``dialogue has not generated
solutions to the issues we have raised'' and the United States
requested the WTO Dispute Settlement Body establish a dispute
resolution panel.\31\
SUBSIDIES
China continues to subsidize key export industries,
including steel and paper, in contravention of its commitments
under the Word Trade Organization (WTO) Subsidies Agreement,
and has not demonstrated adequate transparency about these
subsidies. A U.S. Trade Representative-Commerce Department
joint report described China's April 2006 subsidies
notification as ``long overdue,'' noting that ``although
[China's] notification is lengthy, with over 70 subsidy
programs reported, it is also notably incomplete. China failed
to notify any subsidies provided by its state-owned banks or by
provincial and local government authorities.'' \32\ In October
2006, the U.S. paper industry filed a petition to the
Department of Commerce alleging ``injurious subsidized imports
of coated free sheet . . . paper from China,'' and in November
the Commerce Department initiated a countervailing duties
investigation.\33\
China's steel industry subsidies are motivated in part by
unemployment and demonstrations by laid-off workers This is
especially so in China's northeastern rustbelt where Anben
(formerly Anshan and Benxi) Steel and other major producers are
based.\34\ In 2000, the Chinese government committed more than
US$6 billion to transform, expand, and modernize its steel
industry, with much of this coming in various forms of directed
support from local governments.\35\ Baosteel has reported
receiving 25 million yuan in ``subsidies'' in 2005, and another
21 million in the first six months of 2006.\36\ Many other
subsidies take the form of support from China's state-owned
banks, including the extension of preferential loans and
directed credit,\37\ in addition to inaction on non-performing
loans, exchanges of unpaid debt for equity, or actual
forgiveness of debt.\38\
China's subsidies notification also notes other programs
under which small- and medium- sized enterprises, a category
which includes many steel producers, have received funds to
support technological innovation, exploration of global
markets, and other forms of development.\39\ The Chinese
government, and local governments in particular, also subsidize
energy, raw materials, and land for these firms. In April 2007,
Premier Wen Jiabao criticized local governments for offering
deeply discounted or free land to job-creating local
enterprises, specifically mentioning steel mills.\40\ The
Chinese government also selectively enforces environmental
standards that would impose a significant cost on many aging
factories.\41\ The Chinese government also implements
investment policies that leverage market access in ways that
amount to an industry subsidy. China's 2005 ``Policy for the
Development of Iron and Steel Industry'' encourages domestic
sourcing and long-term import substitution:
``Article 18: The policies of imported technologies and
equipment: Enterprises are encouraged to use home-made
equipment and technologies and reduce export. For any
equipment or technology that cannot be produced
domestically or fails to meet the demand and, thus,
must be introduced from abroad, the introduced
equipment or
technology shall be advanced and practical. For the
equipment in large amount or big scope, we should
organize and implement the localized production thereof
from now on.'' \42\
Elsewhere the policy promises that ``the state shall grant
policy supports in such aspects as taxation, interest subsidy
and scientific research funds'' for any ``major iron and steel
project'' that is ``based on home-made equipment as newly
developed.'' \43\ This policy contravenes China's WTO
commitments by requiring use of domestic suppliers as a
condition for investment.\44\ Finally, exports of steel, like
all Chinese exports, benefit from China's undervalued
currency.\45\
In February 2007, the United States filed a WTO dispute
settlement proceeding against China alleging prohibited
subsidies and requesting consultations; later that month Mexico
also sought consultations for these subsidies. In the initial
February filing, the United States highlighted nine specific
sets of tax law articles or regulations that it said
constituted import substitution subsidies or export
subsidies.\46\ Seven of these nine sets of regulations were
aimed at foreign invested enterprises. Three of them
specifically cited articles in China's Rules for Implementation
of the Income Tax Law of the People's Republic of China for
Enterprises with Foreign Investment and Foreign
Enterprises,\47\ which were read in conjunction with several
other directives from China's State Council and its financial
and taxation departments as constituting prohibited
subsidies.\48\ In July, the Chinese government exercised its
right under WTO regulations to block the complaint in favor of
additional consultations, which took place on July 22.\49\ U.S.
officials, speaking after the second round of consultations,
noted that the Chinese government had lifted one of the
subsidies the United States had challenged. In August, the WTO
Dispute Resolution Body accepted the complaint for
investigation on second filing by the United States and
Mexico.\50\ China's Ministry of Commerce contends that the
complaint is ``politically motivated'' and based on a ``huge
misunderstanding'' of China's enterprise tax system.\51\
OPENING OF CHINA'S OIL MARKETS
The opening of China's oil sector has replaced a long
standing state monopoly. New measures, however, establish
licensing schemes that may continue to maintain barriers to
entry by new market participants.
Crude Oil
Four state-run players have long controlled China's crude
oil sale and storage market: China National Petroleum
Corporation (CNPC), China National Offshore Oil Corporation
(CNOOC), Sinochem Corporation (SINOCHEM) and China
Petrochemical Corporation (SINOPEC). China's WTO commitments
required opening of its crude oil distribution and storage
market by December 11, 2006.
On December 4, 2006, the Ministry of Commerce (MOFCOM)
issued a new Regulation on the Administration of the Crude Oil
Market (the ``Crude Oil Regulation''), which went into effect
on January 1, 2007.\52\ Using the term ``crude oil'' to refer
both to foreign and domestically produced crude, the new
regulation permits foreign companies to sell foreign crude into
China's domestic oil market. The regulation sets forth a new
licensing scheme for crude oil sales and storage.\53\ MOFCOM is
responsible for implementation and enforcement of the new
licensing scheme.\54\
The new licensing scheme under the Crude Oil Regulation
sets high storage tank capacity requirements that may require
significant additional investment for foreign applicants. It
also requires license applicants to demonstrate access to sales
channels that is ``long-term, stable, and legal'' but does not
specify the meaning of these terms, leaving subsequent
clarification to MOFCOM's discretion. At the time of this
writing, MOFCOM has not provided formal clarification.
Oil Products
Additional measures also provided for new market entrants
into the wholesale oil product market, which has long been
controlled by CNPC and SINOPEC. The Regulation on the
Administration of the Oil Product Market was issued by MOFCOM
on December 4, 2006, and went into effect on January 1, 2007.
With this regulation, both foreign and private Chinese
companies can enter the market. The regulation sets forth a new
oil product licensing framework\55\ and expands the meaning of
``oil products'' to include gasoline, kerosene, diesel, and
renewables including ethanol and biodiesel.\56\
China's opening of its oil product market is required under
its WTO commitments and has been long-anticipated. Analysts
have pointed out however, that, ``while this opening will
encourage diversification in oil product supply, the road ahead
for foreign oil
companies in China remains challenging.'' \57\ Specifically,
``the fact that separate import and export licenses are still
required will nevertheless makes it difficult for foreign
companies to independently operate in the wholesale market
until such time as the licenses for import and export are
relaxed.'' \58\
BANKING SECTOR DEVELOPMENTS
Foreign Participation In Chinese Banks
Pursuant to its WTO commitments, China issued the
Regulation on Administration of Foreign Invested Banks and
Implementing Rules on Foreign Invested Banks, both of which
came into effect on December 11, 2006.\59\ These measures
opened China's banking sector to new entrants.
The Foreign Bank Rules distinguish among four kinds of
foreign invested banks: wholly foreign owned banks (WFOB),\60\
Sino-foreign joint venture banks (JVB),\61\ branch offices of
foreign banks,\62\ and representative offices of foreign
banks.\63\ In order to invest in a Chinese bank, foreign
investors must meet minimum size requirements. These new rules
prohibit private equity investors, foreign non-banks, and
investment funds from holding a controlling interest in Chinese
banks.\64\ They also give the China Banking Regulatory
Commission (CBRC) a veto over prospective investment by a
foreign entity.
WFOBs and JVBs are now permitted to offer services in core
businesses heretofore reserved as the exclusive domain of
Chinese banks.\65\ Chinese banks in most sectors therefore face
the possibility of direct competition from locally incorporated
WFOBs and JVBs. Branch offices are prohibited under the new
rules from
engaging in bank card business, and must comply with new
restrictions on the receipt of RMB deposits, but otherwise may
now engage in business similar in scope to WFOBs and JVBs. In
addition, foreign banks may now convert branch offices to WFOBs
with the approval, and under the oversight, of the CBRC.
Representative offices are not permitted to conduct banking
business, but may engage in market research, liaison and
consulting activities related to the establishment of a WFOB,
JVB or branch.
Commercial Bank Risk Management
On October 25, 2006, the CBRC issued the Guidance on
Compliance Risk Management for Commercial Banks that applies to
domestic commercial banks, wholly foreign-owned banks, Sino-
foreign equity joint venture banks, and foreign bank branches.
The guidance requires these entities to implement systems for
compliance assessment, reporting, and accountability.
Specifically, it addresses the duties and obligations of boards
of directors, boards of supervisors, and senior officers.
Responsibility for the approval and assessment of compliance
policies and reporting now resides with the board of directors,
which is required to appoint a risk management committee,
internal audit committee, and compliance management committee.
The board of supervisors is responsible for evaluating
fulfillment by the board of directors and senior management of
their compliance and risk management duties. It is unclear how
the guidance will be implemented and enforced with respect to
institutions that do not have both a board of directors and a
board of supervisors.\66\
Anti-Money Laundering Law
China's obligations under the UN Convention Against
Corruption prompted passage in 2006 of a new Anti-Money
Laundering Law that went into effect in 2007, along with a pair
of anti-money laundering regulations issued by the People's
Bank of China (PBOC).\67\ China asserts that the new law also
meets standards set forth by the Financial Action Task Force on
Money Laundering (FATF) at the G7 Summit held in Paris in 1989.
The law applies to commercial banks, credit co-operatives,
postal savings institutions, trust investment companies,
securities companies, commodity brokerage firms, insurance
companies, and other ``financial institutions.'' Discretion to
expand the definition of a ``financial institution'' resides
with the State Council Anti-Money Laundering Bureau. The
Customs Office and the State Council Anti-Money Laundering
Bureau are the primary state actors under the new system set
forth in the law, with the State Council Anti-Money Laundering
Bureau also exercising authority to cooperate with overseas
entities and international organizations. The PBOC has
additionally emerged as the financial institution chiefly
responsible for financial industry anti-money laundering
matters, with significantly expanded investigative powers. The
PBOC has authority to monitor both yuan and foreign currency
transactions, to exchange information with institutions abroad,
and to cooperate with international law enforcement.\68\
The law requires financial institutions to establish
dedicated anti-money laundering units, to maintain adequate
systems of
internal controls and to comply with tough new rules on the
documentation of clients' identities. The law provides for
specific administrative sanctions in money laundering cases
that involve the abuse of enforcement authority. Financial
institutions, and their directors and officers, are liable,
both monetarily and non-monetarily, for entering into
transactions with ``suspicious individuals,'' opening accounts
under false names, failure to maintain proper records, failure
to report suspicious transactions, and general ``failure to
fulfill legal obligations under the law.''
ANTI-MONOPOLY LAW
China passed a new Anti-Monopoly Law on August 30, 2007,
which will take effect on August 1, 2008. The law provides for
``an anti-monopoly commission to be set up under the State
Council to deal with anti-monopoly issues.'' \69\ The law
provides for the investigation and prosecution of monopolistic
practices, but also carves out exceptions for cases in which
the proposed anti-monopoly commission determines that
monopolistic arrangements ``favor innovation and technological
development.''
Under the new law, foreign acquisitions of Chinese
companies will be subject to scrutiny intended to ``protect
national economic security.'' In addition, ``foreign mergers
with, or acquisitions of, domestic companies or foreign capital
investing in domestic companies' operations in other forms
should go through national security checks according to
relevant laws and regulations.'' These ``checks'' are ``in
addition to anti-monopoly checks stipulated by this law.''
Passage of the new law follows regulations jointly issued
last year by MOFCOM and five other agencies. Those regulations
require foreign investors to obtain MOFCOM approval for
purchases of domestic companies that may impact ``national
economic security.'' In issuing such approvals, MOFCOM relies
on a list of strategic sectors issued by the State Council last
December. Sectors on the list include military, manufacturing,
power generation, power grids, petroleum, petrochemicals,
telecommunications, coal, civil aviation, and shipping.
APPLICATION OF PRC LAWS TO FOREIGN-RELATED CONTRACTUAL DISPUTES
Business contracts between international parties typically
specify which nation's laws govern the contract. China's
courts, however, do not always recognize the choice of law
provisions in contracts that come before them.
Most civil and commercial contracts are governed by China's
Civil Law, General Principles of Civil Procedure, and Contract
Law. In most cases, parties to a contract involving foreign
interests are permitted to choose the contract's governing law.
However, there are exceptions in which the application of PRC
law is mandated. The most familiar exceptions include Sino-
foreign equity joint venture contracts, Sino-foreign
cooperative joint venture contracts, and contracts for Sino-
foreign cooperative exploration and development of natural
resources.
In the last 12 months, China has expanded the list of
contract types to which the application of PRC law is mandated,
leaving parties with no choice of law discretion in a widening
array of contractual relationships. Regulations on the Merger
with or Acquisition of Domestic Enterprises by Foreign
Investors, issued in August 2006, mandated that PRC law shall
govern the purchase of equity interests or assets, as well as
contracts in which foreign investors increase capital
investment in domestic enterprises. In 2007, China further
expanded the range of contract types over which the application
of PRC law is mandated. Specifically, on June 11, 2007, the
Supreme People's Court issued Provisions on Several Issues
Concerning Application of Laws for Trial of Disputes Arising
from Foreign-related Civil or Commercial Contracts, which went
into effect on August 8, 2007. Under the new provisions, courts
will now apply the ``principle of proximate connections'' in
determining which nation's law governs a disputed contract
provision. This principle requires courts to determine which
country's law has the ``strongest proximate connection'' with
the ``subject matter'' of the contract.\70\
Experts have concluded that under these provisions,
``foreign
investors doing business in China or engaging in cross-border
transactions with China, have fewer choices than they once did
concerning choice of law.'' Foreign investors, however, do
retain the option to resolve contract disputes through
arbitration within or outside the PRC. Some investors prefer
arbitration over litigation in Chinese courts\71\ Whether the
new Provisions signal a broader attempt to channel contract
dispute resolution away from courts remains to be seen.
SUPREME PEOPLE'S COURT INTERPRETATION OF 1992 LAW AGAINST UNFAIR
COMPETITION
Civil litigation cases in China have more than doubled in
number and frequency over the last decade and a half.
Intellectual property cases account for a significant portion
of that increase. Many such cases stem from the chronic
ambiguity of statutory language, which prompted the Supreme
People's Court to issue in January 2007 an Interpretation on
Several Issues Regarding the Application of Law in Unfair
Competition Civil Cases. The interpretation adds clarity to key
statutory terms governing cases involving misleading
advertising, misuse of brand names and the definition of trade
secrets. It has been greeted positively by international
business and legal professionals.\72\
In the absence of a case law tradition, the Court's
interpretations are a critical medium through which the Court
instructs judges on the meaning they are to attach to vague
statutory text when applying such text to concrete
circumstances in the context of individual cases. The
interpretation offers specific, practical guidance to judges on
statutory interpretation. In specifying the criteria judges may
use to make complex determinations (such as whether an item is
or is not ``known to the public''), the interpretation offers
concrete examples that appear to be drawn from prior cases.\73\
The interpretation also refers to and adopts standards from
China's Law on Trademarks, and is expected to play a
significant role in guiding future judicial decisionmaking in
intellectual property cases.
BUSINESS ENTERPRISES
Enterprise Bankruptcy Law
Passed by the National People's Congress (NPC) in August
2006, China's new Enterprise Bankruptcy Law went into effect on
June 1, 2007.\74\ The new law establishes a court-appointed
administrator system to replace the state-controlled
``bankruptcy committee'' model established in 1986, before
implementation of some of China's more significant economic
reforms and subsequent economic growth.
China first passed a trial version of the Enterprise
Bankruptcy Law in 1986,\75\ which applied only to state-owned
enterprises (SOEs), many of which the state did not permit to
fail for fear of the worker protests that might follow large-
scale plant shut downs. The new law applies both to SOEs and to
private enterprises (both foreign and domestic). It does not
apply to individuals, but does provide for involuntary
bankruptcy proceedings initiated by a single creditor.
Individuals who voluntarily file for bankruptcy may choose
reorganization (debt restructuring), liquidation or
conciliation--choices not offered under the old law. Prompted
in part by the widespread fraud and corruption associated with
bankruptcies that took place under the old system, the new law
also specifies conditions under which prior transactions may be
invalidated.
The new law's most significant provisions concern the
validity and prioritization of claims. The law applies to
foreign firms in China and to Chinese firms abroad, allowing
for cross-border bankruptcy.\76\ The law provides for
enforcement of foreign judgments in cases where there is
reciprocal recognition of the extraterritorial effect of
Chinese bankruptcy judgments. ``In other words, debtors with
foreign judgments against a bankrupt Chinese company may be
able to collect on that judgment in the Chinese bankruptcy.''
\77\ Under the old system, state-controlled ``bankruptcy
committees'' had discretion to prioritize employees' and select
``local'' creditors' claims over those of secured creditors.
The new law assigns first priority to secured creditors,
followed by employees, unpaid taxes, and then unsecured
creditors.\78\
Special provisions in the new law address the bankruptcy of
financial institutions. Government approval is required prior
to any declaration of bankruptcy by a financial institution.
Receivership and restructuring provisions in the new law
authorize the government to intervene in specific cases, if it
finds the risk to society associated with financial institution
failure to be too great.
Enterprise Income Tax Law
China's new Enterprise Income Tax Law, passed in March
2007, will take effect on January 1, 2008. The new law
consolidates the two tax regimes set forth under the PRC
Foreign Investment
Enterprise and Foreign Enterprise Law (1991) and the Interim
Measures of Enterprise Income Tax (1993). Until now, separate
tax regimes for domestic and foreign invested enterprises had
been an important part of China's overall scheme for attracting
foreign investment. The new Enterprise Income Tax Law's regime
is more industry focused. Industry-based incentives favor
companies
engaged in advanced technology, environmental protection,
agriculture, utilities, water conservation, high technology,
forestry, animal husbandry, fisheries and infrastructure
construction, venture capital and enterprises supporting
disadvantaged groups.\79\
The scope and application of the Enterprise Income Tax
Law's most important provisions will depend on implementing
rules still only in draft form. The State Tax Administration
and the Ministry of Finance recently released proposed
Implementing Rules on the New Tax Law in draft form for public
comment. Analysts expect the implementing rules to be finalized
by the end of 2007 and to take effect with the New Tax Law.\80\
The law's full impact will become clearer only after a period
of actual implementation.
Enterprise Partnerships
China's Partnership Enterprise Law, which was amended to
promote the development of the accounting and other service
professions, and to facilitate the establishment of venture
capital investment firms, came into effect on June 1, 2007. The
law's limited partnership provisions allow partners to enjoy
limited liability so long as one partner assumes unlimited
liability. Limited partners may make capital contributions in
money or in kind, including in intellectual property rights and
land use rights. In order ``to protect national and public
interest, and the interests of shareholders,'' the law
prohibits SOEs and listed companies from becoming general
partners.\81\
Commercial Franchising
China is number one in the world in terms of its number of
commercial franchise operations (more than 168,000 outlets
across over 60 industries).\82\ Franchisors nonetheless find
China to be a more restrictive operating environment than other
markets.\83\
On February 6, 2007, the State Council issued a new
Regulation on Administration of Commercial Franchises, which
went into effect on May 1, 2007. Around the same time, MOFCOM
issued Measures on the Administration of Filing of Commercial
Franchising and Measures on the Administration of Information
Disclosure of Commercial Franchising. The new measures
introduce a ``Two Outlets+One Year'' rule for franchisor
qualifications. Under old rules issued in 2004, franchisors
were required to have at least two directly operated outlets in
operation for more than one year to qualify for a franchise in
China. Article 7 of the new regulation does not state
explicitly that the outlets must be within China. Industry
analysts have greeted this as ``a welcome change for
international franchisors.'' \84\
Value-Added Tax (VAT)
China continues to use its value-added tax (VAT) system,
established in 1994, as an economic policy instrument,
repeatedly adjusting the rates or eliminating them altogether
to encourage some exports, promote import substitution, or lure
in direct foreign investment.\85\ In the first six months of
2007, the State Taxation Administration reported processing
more than 268 billion yuan (over US$33 billion) in tax rebates
for exports of steel products, concrete, chemicals, and other
products.\86\ These differential VAT rates and export rebates
violate China's national treatment obligations under the WTO,
and have resulted in formal complaints concerning
semiconductors and requests for dispute settlement panels
regarding imported capital equipment and domestic
equipment.\87\ During 2006-2007, China readjusted export
rebates for several thousand commodities, in part to ``ease
frictions between China and its trade partners.'' A September
2006 directive from the Ministry of Finance and four other
departments raised the rebates on some biomedical, information
technology, and other high-tech exports, while lowering them on
a wide variety of steel, ceramic, wood, non-ferrous metal, and
other products, and eliminating the rebates entirely for a
number of low-tech products.\88\ Effective April 15, 2007, the
Ministry of Finance abolished export rebates for 86 categories
of steel products. For 76 other categories of steel products,
including cold-rolling products, the ministry retained the
export rebates, although it lowered the rebate rate to a
uniform five percent.\89\ Effective July 1, 2007, the Ministry
of Finance and the State Taxation Administration lowered VAT
refund rates for over 2,800 commodities, most of which the
Finance Ministry spokesman described as ``highly polluting
products that consume heavy amounts of energy and resources.''
Some are low value-added products (including apparel).\90\ The
readjustment of these VAT rates demonstrates that China is
focused on VAT-related issues. Although China has increased the
tax burden on exporters of some goods that have been the
subject of international trade tensions, its overall approach
shows continued use of the tax to subsidize favored exports,
including high-tech and some steel products.
PROPERTY LAW
Property in China heretofore has been governed by a diffuse
network of legal provisions distributed across several laws
(primarily the General Principles of Civil Law, the Land
Administration Law, the Urban Real Estate Administration Law,
the Law on Rural Land Contracting and the Securities Law).
China's new Property Law, passed last March and effective
beginning October 1, 2007, consolidates China's various laws
affecting both public and private property, and represents
positive change in a number of important ways. It was passed
following a particularly extensive process of deliberation by
the National People's Congress and solicitation of comments
from the general public.
Use Rights
The National People's Congress first recognized that ``the
right to use land may be transferred according to law'' when it
amended the Constitution and revised the Land Management Law in
1988.\91\ The new Property Law helps to provide more detailed
clarification of the bundle of property rights in China, and
sets forth specific provisions to separate out and establish
guideposts for the determination of ownership rights, use
rights, security interests, and rights of possession.\92\ The
clarification of use rights is particularly significant since
it helps to elevate the legal status of the private sector of
China's economy. As one analyst notes:
(U)se rights are property rights that can be purchased
and sold, mortgaged, gifted and inherited. Thus,
classification of use rights as a form of property is
essential to the creation of a market economy. . . .
Since all rights concerning land held by private
persons in China fall under the classification of use
rights, categorization of use rights as property rights
has an enormous impact.\93\
Clarification of use rights thus helps to codify into law a
promise that was introduced into the 2004 Amendment to the
Chinese Constitution: the state's protection of the ``lawful
rights and interests of non-public sectors of the economy such
as the individual economy and the private economy.'' \94\
Uniform National Registration System
The creation of a uniform, national real property
registration system is another of the new law's most important
features.\95\ Under the new law, the creation, change, transfer
or termination of a property right may be legally unenforceable
without evidence of registration. Registration is the only
conclusive evidence of a property right.\96\ That said, the law
also creates a right to apply for correction in cases of
alleged mistakes on the registry. In cases of proven loss, the
law gives injured parties the right to claim damages against
the registry. In cases where loss results from submission to
the registry of false documentation, injured parties may file
claims both against the submitter of false documentation and
against the registry that accepted it. The new law also imposes
limits on excessive registration fees, which was a problem
under the old system.\97\
Reapportionment of Rural Land
The new Property Law makes it illegal for local officials
to use reapportionment as a means to alter the terms of rural
land contracts. This is another important development.
In many rural areas, the terms of land contracts are
adjusted on an annual basis to account for changes in residence
patterns and in cropping patterns. This practice was commonly
used to punish households for disagreeing with local leaders,
and by the leaders themselves to extract rents.\98\ This
practice is now prohibited and rural households are given the
right to defend their land contract rights against these
improper acts by local authorities.\99\
In 2004, reports of thousands of cases of illegal land
activities impacting rural areas prompted the State Council to
issue a decision to prevent the abuse of reapportionment
powers. This decision is now codified into law with the passage
of the Property Law.
Partitioned Ownership
Provisions covering partitioned ownership of buildings have
received considerable attention. Urbanization increases the
importance of partitioned ownership of multi-unit structures,
such as high-rise buildings that house multiple businesses or
families. The new Property Law distinguishes between exclusive
rights over individual units, and common rights over common
spaces. It carves out special exceptions for elevators, green
space and other areas.\100\ The law also includes provisions
regarding the allocation of garage and parking spaces, which
have been the subject of a rising number of disputes in recent
years.\101\ The law also contains provisions that protect the
property interests of unit owners in cases where developers
deviate from previously announced construction plans.
Missed Opportunities
Despite the general progress that is reflected by the
issuance of a Property Law in China, there remain some
significant missed opportunities. Government seizure of land
and buildings, for example, has been a major cause of citizen
complaints and protest against the government. Chinese law
explicitly requires that government takings of land must be in
the ``public interest'' and accompanied by compensation.
Failure to specify methods for calculating compensation and
ambiguity in the meaning of ``public interest'' have seriously
undermined these protections and invited abuse. Provisions
addressing these problems were included in drafts of the new
law, but proved so controversial that, by its own public
admission, the NPC's only alternative to delay was to take them
off the table. Provisions dealing with the transfer of
agricultural land to the state for construction, another major
source of controversy in rural China, also display what seems
to be intentional ambiguity.\102\
Sector-Specific Impact
All in all, the new Property Law will have a significant
impact across several industrial sectors, among them the
following four:
Lending
By providing for mortgage, pledges and liens, the Property
Law expands the range of security interests available to
lenders. All property may be subject to charge or pledge,
except where otherwise provided by existing law. By
incorporating elements of common market practice (e.g. a charge
on contracting rights to uncultivated land, pledges on
receivables), the law increases the flexibility with which
lenders may secure transactions.
Agriculture
Under the new Property Law, investors in agriculture may
enter into direct arrangements with rural households who in
turn may contract with farmer's cooperatives for cultivation
rights over collectively-owned land. Investors also may
contract directly with the government to cultivate uncultivated
land. Combined with favorable tax treatment of agricultural
investment, this would set the stage for increased foreign
investment in Chinese agriculture, which could lead ultimately
to the outsourcing of farming to China.
Mining
Current Chinese law encourages investment, including
foreign investment, in the exploitation or mining of many of
China's mineral and natural resources. Exploitation and mining
rights, including those held by a foreign invested enterprise,
are transferable under the new law.\101\ The impact of
transferability on mining sector business may be significant.
Real Estate
Many aspects of the new law augur well for the real estate
sector. But news from other quarters of China's bureaucracy
have dampened enthusiasm. On July 10, 2007, the State
Administration of Foreign Exchange reportedly issued an
internal Circular (known to industry insiders as ``Circular
130'') on the Distribution of the List of the First Group of
Foreign Invested Real Estate Projects which have Filed with
MOFCOM. Experts familiar with the document warn that these
measures place significant restrictions on foreign investors in
China's Real Estate market:
. . . Circular 130 is another restrictive measure of
the Chinese government to cool down foreign investment
in its real estate market, and its implications are
very significant. Foreign investors may lose the
ability to invest in new projects or claim ahead of
other creditors of the onshore company to the extent
that loans must now be injected as equity. Investors
may also lose an important means for remittance of
funds offshore in ways other than as dividends out of
earnings and surplus, as any reductions in registered
capital now require the consent of MOFCOM.\103\
LABOR CONTRACT LAW
In June 2007, the Standing Committee of the National
People's Congress passed a new Labor Contract Law that governs
the
contractual relationship between workers and employers from
enterprises, individual economic organizations, and private
non-enterprise units. The law will take effect in January 2008.
[See Section II--Worker Rights.]
Impact of Emergencies: Food Safety, Product Quality, and Climate Change
The context of China's domestic rule of law development
changed from 2006 to 2007, with a sharp rise in domestic and
international concerns over food safety, product quality, and
climate change. These concerns, and China's response to them,
will both shape and be shaped by China's rule of law reforms.
Because their impact on the course of rule of law in China is
expected to be large, these developments are covered here in
added detail.
FOOD SAFETY
Domestic and international concerns over the safety of
Chinese food products have increased significantly in the last
five years due to unsafe food production and insufficient
government oversight. The Ministry of Health (MOH) reported
that 31,860 people suffered from food poisoning in 2006.\1\ A
recent survey found that more than 80 percent of Chinese
consumers are now willing to pay a premium for food safety, up
from 57 percent in 2005.\2\ In a particularly notorious case
from April 2004, 13 babies died and hundreds more suffered from
serious malnutrition after consuming counterfeit and
substandard milk powder in Anhui province.\3\ In early 2007,
pet food produced in China and containing wheat gluten
contaminated with melamine reportedly caused the deaths of at
least 16 cats and dogs in the United States, and sickened some
12,000 pets.\4\ In June 2007, the U.S. Food and Drug
Administration (U.S. FDA) restricted the import of five types
of farm-raised fish and shrimp from China because they were
found to contain unsafe antibiotics.\5\
Unsafe Food Production: Regulatory Challenges
With the transition to a market economy, many of China's
food producers are small landholders or family workshops who
rely on excessive amounts of fertilizers, pesticides, or
veterinary drugs to maintain high production rates.\6\ Water
and soil used for this production may already be contaminated
with metals from the poor disposal of industrial and electronic
waste.\7\ For example, up to 10 percent of farmland in China is
thought to be polluted, and 12 million tons of grain is
contaminated annually with heavy metals in the soil.\8\
Inferior raw materials, the use of production chemicals
unsuitable for food, and the lack of a safe infrastructure for
food delivery and storage also contribute to substandard food
products.\9\
Insufficient Oversight: Regulatory Fragmentation
Fragmentation of regulatory authority among 10 major
government agencies makes it more difficult for the government
to regulate the smaller family workshops that comprise the
majority of China's food producers and processing centers.\10\
[See Tables 1 and 2 for a list of government agencies involved
in the oversight of food safety at the national and local
level.] According to the State Council White Paper on Food
Quality and Safety released in August 2007, China has 448,000
food production and processing enterprises, of which 353,000,
or 78.8 percent, are small businesses or workshops with fewer
than 10 employees.\11\ Public officials established the State
Food and Drug Administration (SFDA) in 2003 to consolidate
oversight of food safety management, but resistance from other
agencies who fear losing their revenue-generating ability has
limited the transfer of power and responsibility to the SFDA.
As a result, the SFDA and its local food and drug bureaus
remain hampered in their ability to effectively regulate food
safety and coordinate policy below the provincial level. The
local bureaus remain beholden to local governments for their
budgetary and personnel allocations, and approvals in
promotions for their staff.\12\ The central government has not
instituted an effective regulatory system in rural areas that
is in keeping with similar improvements in urban areas,
including an increase in urban residents' awareness of their
rights. Only some of the agencies have extended their presence
down to the township and village level, and this regulatory
void has led many counterfeiters to distribute their products
in these areas, much to the worry of villagers.\13\
Government Response to Domestic and International Food Safety Concerns
China's international response is to reiterate its status
as a developing country that had a late start in developing
foundations for food and drug supervision, and to assert that
it is the foreign media that exaggerate the extent of safety-
related issues. Official Chinese figures report that 99 percent
of its exports meet quality standards.\14\ In late July and
early August 2007, high-level officials from both the European
Union and the United States met with Chinese public officials
to discuss the quality and safety of China's exports and ways
to improve inspections.\15\ Both U.S. and Chinese media have
reported back-and-forth blocking or banning of products from
the other country.\16\ While each country annually blocks food
exports from the other country,\17\ some of the current exports
are probably being blocked in response to heightened attention
on China's export safety issues.
Domestic Response
Domestically, central government reform of the food safety
system has been in progress throughout the last five years,
though largely in response to domestic food-related incidents.
China's domestic response is aimed at increasing inspections
and oversight of food producers; strengthening law enforcement,
including increasing the punishment for violators; establishing
a national recall system, national standards, and an emergency
response mechanism; and strengthening international
cooperation. To date, China has issued 14 national laws, 16
administrative regulations, 76 departmental regulations, and a
five-year plan on food safety.\18\ Within the past year, local
governments have passed 129 regulations and other policy
directives relating to food safety.
Since SFDA's creation in 2003, the central government has
passed regulations on food quality monitoring and hygiene
licensing, and strengthened the regulatory framework in local
and rural areas. There are also periodic national campaigns
against counterfeit and substandard products. For example,
between 2006 and June 2007, inspectors from the General
Administration for Quality Supervision, Inspection and
Quarantine (AQSIQ) closed 180 food plants and discovered more
than 23,000 food safety violations.\19\ SFDA has also promoted
the establishment of local food safety commissions to improve
interagency coordination and cooperation.\20\ As of August 28,
2007, food safety commissions have been established in all
provinces, and in most major cities. In addition to a national
informational Web site on food safety established by the SFDA,
many of these provincial and municipal commissions have also
established active informational Web sites.\21\ In terms of
rural areas, Zhejiang province, for example, established a
rural consumer rights protection network to help residents seek
redress from producers or sellers of counterfeit or substandard
products.\22\ A municipal bureau in Zhejiang noted several
shortcomings with this network, however, including its lack of
financial resources and influence, and the lack of incentives
to conduct inspections.\23\ By mid-2005, SFDA and the State
Administration for Industry and Commerce (SAIC) had taken
measures to boost information gathering in rural areas by
recruiting volunteer food safety supervisors or coordinators to
monitor food safety and the food production situation.\24\
The central government initiated the market access system
in 2001, whereby food producers will be issued production
licenses only when they have met the official standards for
production conditions and facilities and the quality of
foodstuffs.\25\ This system, however, has undermined the
government's objective to increase employment by forcing many
of the smaller food producers to close.\26\ Because
implementation of this system has forced noncompliant smaller
food producers to close, and because those producers contribute
to local economic performance on which local officials are
evaluated, the system must overcome political constraints that
are not insignificant. The AQSIQ announced that it hopes to cut
the number of these workshops in half by the end of 2009.\27\
After a series of domestic incidents in 2004, most notably
the Anhui ``fake baby milk powder'' scandal, the State Council
issued the Decision on Further Strengthening Food Safety
Supervision in September 2004 to clarify the functions and
responsibilities of the agencies with food safety oversight.
Under this decision, the State Council divided food safety
supervision into four ``monitoring links,'' with each link
managed by either the Ministry of Agriculture (MOA), AQSIQ,
SAIC, or MOH. For example, MOA supervises the production of
primary agricultural products; AQSIQ supervises the quality and
safety of food processing, as well as imported and exported
agricultural products and other foodstuffs; SAIC supervises
food circulation and distribution; while MOH supervises the
catering and restaurant industry. The SFDA is charged with the
comprehensive supervision and coordination of food safety, and
manages the investigation of major incidents and the punishment
of those responsible for them.\28\
Even though the State Council has adopted measures to
clarify the regulatory responsibilities of different agencies,
recent food safety incidents reveal that there are still
various regulatory loopholes that food producers and exporters
can use to evade quality inspections. In terms of the pet food
incident in 2007, AQSIQ noted that one of the companies who
used melamine in its product bypassed quality checks by
labeling its product as exports not subject to inspection.\29\
The current international spotlight has accelerated the
issuance and implementation of regulations and other policy
directives. For example, between June and July 2007, both
President Hu Jintao and Premier Wen Jiabao pledged to improve
food safety and product quality, which reflects high-level
government attention to the issue.\30\ On July 25, 2007, the
State Council published draft regulations to strengthen the
food safety oversight responsibilities of local governments, to
increase the punishment for illegal activity, and to strengthen
international cooperation efforts.\31\ The meeting, chaired by
Premier Wen Jiabao, also promised better safety checks and
greater openness with quality problems.\32\ In addtion, the
central government has established an emergency response
mechanism among several ministries and a national food product
tracking system.\33\ At the local level, the Beijing Municipal
People's Congress is considering the passage of regulations
regarding food safety that offer producers and vendors
incentives to voluntarily recall unsafe food, which is of
special concern for Beijing during the 2008 Summer
Olympics.\34\ For example, Article 28 states that producers and
vendors could receive lenient treatment or be exempted from
penalties if they took the initiative to promptly recall unsafe
food. The draft regulations also contain 18 articles regarding
penalties for violations, including a maximum fine of 500,000
yuan (US$66,556). Some policymakers, however, believe that
these penalties are too lenient to act as an effective
deterrent.\35\
In terms of policy objectives, the State Council publicly
released its national Five-Year Plan on Food and Drug Safety
(2006-2010) on June 5, 2007,\36\ with the aim to implement
strict controls to prevent farmers and producers from overusing
pesticides and additives, to publish online lists of
blacklisted food exporters and
restrict their ability to export, to strengthen investigations
of major food safety incidents, to upgrade standards, and to
severely punish offenders.\37\ The AQSIQ announced plans to
implement the first national recall system by the end of 2007,
which would contribute to building a food safety credibility
system, if implemented effectively, and would fill a regulatory
void in the national law.\38\ The Standardization
Administration of China and the AQSIQ also aim to standardize
processes in the food industry by changing, abolishing, and
amending standards so that the average duration of food
standards will be reduced from 12 years to 4\1/2\ years by
2010.\39\
Table 1.--Major National Government Departments With Food Safety
Oversight Responsibilities
(Note: Under some circumstances, other national-level departments not
listed here may perform food safety oversight functions.)
------------------------------------------------------------------------
Main Responsibility With
Government Agency Regard to Food Safety
------------------------------------------------------------------------
State Food and Drug Administration Established in 2003, the
(SFDA)\40\ SFDA is charged with
comprehensive supervision
over the safety management
of food and health foods.
Within the SFDA, there is a
Department of Food Safety
Coordination and a
Department of Food Safety
Supervision.
------------------------------------------------------------------------
General Administration of Quality AQSIQ is charged with the
Supervision, Inspection and Quarantine supervision, management,
(AQSIQ)\41\ inspection, and quarantine
of import and export
products, including food,
and their producers. AQSIQ
has a few departments that
directly focus on food
safety, including the
Bureau of Import and Export
Food Safety and the
Department of Supervision
on Food Production.
------------------------------------------------------------------------
Ministry of Health (MOH)\42\ MOH is charged with the
supervision of food health,
the formulation of food and
cosmetics quality control
protocols, and
responsibility for its
accreditation, as well as
the supervision of the
catering and restaurant
industry.
------------------------------------------------------------------------
Ministry of Agriculture (MOA)\43\ MOA is charged with the
supervision of the
production of primary
agricultural products.
------------------------------------------------------------------------
Ministry of Commerce (MOFCOM)\44\ MOFCOM is charged with
researching and managing
measures for the regulation
of import and export
commodities and compiling a
catalogue of these
regulations, organizing the
implementation of an import
and export quota plan,
deciding on quota quantity,
issuing licenses, and
drafting and implementing
import and export commodity
quota tendering policies.
In addition, it is charged
with a broader mandate to
formulate development
strategies, guidelines, and
policies that relate to
domestic and international
trade, and economic
cooperation.
------------------------------------------------------------------------
State Administration for Industry and SAIC is charged with the
Commerce (SAIC)\45\ supervision of food
circulation and
distribution.
------------------------------------------------------------------------
Table 2.--Major Local-Level Government Departments With Food Safety
Oversight Responsibilities
(Based on analysis of Hangzhou City, Zhejiang province)\46\
------------------------------------------------------------------------
Main Responsibility With
Government Agency Regard to Food Safety
------------------------------------------------------------------------
Municipal Food and Drug Supervision Bureau Responsible for the
comprehensive supervision
and management of food
safety, and the
investigation and
prosecution of major
incidents.
------------------------------------------------------------------------
Municipal Party Committee Propaganda Responsible for propaganda
Department work related to food
safety.
------------------------------------------------------------------------
Municipal Party Committee Rural Affairs Responsible for coordinating
Office work with the Municipal
Rural Affairs Office's
related system to monitor
food safety.
------------------------------------------------------------------------
Municipal Development and Reform Responsible for carrying out
Commission the implementation of
policies relating to the
development of the food
industry.
------------------------------------------------------------------------
Municipal Economic Commission Responsible for directing
and managing the food
production industry.
------------------------------------------------------------------------
Municipal Education Bureau Responsible for school food
safety management and food
safety and health education
work.
------------------------------------------------------------------------
Municipal Science and Technology Bureau Responsible for the
formulation and
implementation of food
safety science and
technology plans.
------------------------------------------------------------------------
Municipal Public Security Bureau Responsible for
investigating and
prosecuting suspected
criminals in cases
involving the production or
sale of counterfeit,
poisonous, or harmful food
products.
------------------------------------------------------------------------
Municipal Supervision Bureau Responsible for
participating in the
investigation, handling,
inspection, supervision,
and disciplining of those
responsible for major food
safety incidents.
------------------------------------------------------------------------
Municipal Finance Bureau Responsible for safeguarding
expenses related to food
safety monitoring work and
the supervision of the use
of funds.
------------------------------------------------------------------------
Municipal Agricultural Bureau (Aquatic Responsible for the
Product Division) monitoring of the
production of primary
agricultural products.\47\
------------------------------------------------------------------------
Municipal Forestry and Water Bureau Responsible for providing
guidance, coordination,
supervision, and management
on the use of terrestrial
animals and wildlife, and
forest products development
plans.
------------------------------------------------------------------------
Municipal Trade Bureau Responsible for the
management of the livestock
slaughtering industry and
the supervision and
management of slaughtering
activities.
------------------------------------------------------------------------
Municipal Grain Bureau Responsible for management
work to ensure the quality
of grain that has been
purchased, in storage, and
in transit, and the safety
of unprocessed food grains.
------------------------------------------------------------------------
Municipal Culture, Radio, Television, and Responsible for monitoring
News Publishing Bureau\48\ and discipline work related
to the city's printing
industry of packaging
materials for food
products.
------------------------------------------------------------------------
Municipal Health Bureau Responsible for the
supervision of food
consumption in the catering
and restaurant
industry.\49\
------------------------------------------------------------------------
Municipal Environmental Protection Bureau Responsible for the
monitoring, supervision,
and investigation of
environmental pollution
that affects food.
------------------------------------------------------------------------
Municipal Industry and Commerce Bureau Responsible for the
supervision of the
circulation and
distribution of food.\50\
------------------------------------------------------------------------
Municipal Quality Supervision Bureau Responsible for the
supervision of food product
quality and safety during
processing.\51\
------------------------------------------------------------------------
Municipal City Management Law Enforcement Responsible for the
Bureau investigation and
prosecution of unlicensed
outdoor sellers and
unlicensed outdoor
breakfast stalls.
------------------------------------------------------------------------
Municipal Legal Affairs Office Responsible for the
supervision and inspection
of food safety work units
in charge of law
enforcement, and to ensure
that they are administering
their duties according to
law.
------------------------------------------------------------------------
Municipal Supply and Marketing Cooperative Responsible for the supply
and marketing system of
agricultural products in
wholesale markets, the
production, processing, and
circulation of agricultural
products, and the
management of the
agricultural industry's
means of production.
------------------------------------------------------------------------
Table 3.--Select Major Events and Government Food Safety Initiatives
From 2003 to 2007
------------------------------------------------------------------------
Date Initiative
------------------------------------------------------------------------
September 2004 The State Council issued the
Decision on Further
Strengthening Food Safety
Supervision.
------------------------------------------------------------------------
September 23, 2004 SFDA issued its opinions
regarding the
implementation of the
Decision of the State
Council to Further
Strengthen Food Safety.
------------------------------------------------------------------------
December 2004 The Standardization
Administration of China,
the National Development
and Reform Commission, MOA,
MOFCOM, MOH, AQSIQ, SFDA,
China National Light
Industry Associations, and
China General Chamber of
Commerce jointly issued the
National Food Standards
Development Plan 2004-2005.
------------------------------------------------------------------------
March 2007 Pet food incident: Pet food
companies initiated a
national recall in the
United States after tainted
wheat gluten was found in
cat and dog food. The
tainted wheat gluten was
eventually linked to the
deaths of at least 16 cats
and dogs and the illnesses
of some 12,000 pets.
------------------------------------------------------------------------
May 7, 2007 Investigations revealed that
two Chinese corporations,
Xuzhou Anying Biologic
Technology Development Co.
and Binzhou Futian Biology
Technology Co., are linked
to the tainted wheat
gluten.
------------------------------------------------------------------------
May 10, 2007 The State Council vowed to
crackdown on the food
industry.
------------------------------------------------------------------------
May 24, 2007 Toothpaste incident: The
U.S. FDA announced that it
would block imports of
toothpaste from China due
to reports elsewhere that
diethylene glycol was found
in toothpaste exported from
China.
------------------------------------------------------------------------
May 30, 2007 AQSIQ announced plans to
establish a national food
recall system.
------------------------------------------------------------------------
June 5, 2007 The State Council publicly
released its national 11th
Five-Year Plan on Food and
Drug Safety (2006-2010).
------------------------------------------------------------------------
July 25, 2007 The State Council released
the Special Regulations of
the State Council on
Intensifying Safety Control
of Food and Other Products
(No. 503 Decree of the
State Council).
------------------------------------------------------------------------
August 17, 2007 The Information Office of
the State Council released
a White Paper entitled
``China's Food Quality and
Safety.''
------------------------------------------------------------------------
End of 2007 AQSIQ plans to implement the
first national food recall
system.
------------------------------------------------------------------------
Table 4.--Number of Food Safety Laws and Regulations Issued By Month and
Level of Government in China in 2007
------------------------------------------------------------------------
National and
Month (in 2007) Local Total National Local
------------------------------------------------------------------------
January 17 3 14
------------------------------------------------------------------------
February 12 2 10
------------------------------------------------------------------------
March (Note: pet food 13 2 11
incident first begins)
------------------------------------------------------------------------
April 21 1 20
------------------------------------------------------------------------
May (Note: toothpaste 10 4 6
incident, and widespread
reporting of poisonous
cough medicine, first
begins)
------------------------------------------------------------------------
June 18 1 17
------------------------------------------------------------------------
July 8 0 8
------------------------------------------------------------------------
August 3 1 2
========================================================================
Total (as of August 28, 102 14 88
2007)
------------------------------------------------------------------------
NON-FOOD PRODUCT QUALITY
Drug and product safety have been a longstanding domestic
issue of concern in China. Recent incidents involving poisonous
diethylene glycol in toothpaste and cough medicine, including
the reported deaths of at least 100 people in Panama, have
captured international attention.\52\ A survey by the General
Administration of Quality Supervision, Inspection and
Quarantine released in 2007 discovered that 23 percent of
locally made toys failed to meet quality standards,\53\ and at
least 18 Chinese people died in 2006 when they ingested
medicine containing diethylene glycol.\54\ Since the 1980s, the
Chinese central government has passed numerous national laws,
regulations, and other legislative measures concerning drug and
product safety.
Despite the number of laws and regulations in the area of
drug and product safety,\55\ domestic and international
consumers continue to face the possibility of being harmed by
products made in China without a standardized and transparent
way to seek redress. For example, the Chinese government has
repeatedly ignored or delayed responses to requests by foreign
government officials to release the identity of companies that
manufactured substandard drugs and to investigate these
companies.\56\ Without this information and greater
transparency, it is difficult for domestic and international
consumers to bring cases against these companies and to avoid
future incidents. Rural consumers and consumers in developing
countries, who may not have adequate access to resources or
knowledge of their rights, are particularly hard hit. Scholars
have noted an influx of counterfeit goods into rural parts of
China in recent years and a corresponding lack of bureaus at
the local level who can address this influx.\57\
Chinese public officials have taken some steps in the past
year to address concerns over drug and product safety, possibly
in response to recent incidents and international pressure,
although these steps are reactive measures that are
insufficient to address the root causes of safety concerns. For
example, the Supreme People's Court approved the execution of
Zheng Xiaoyu, former Commissioner of the State Food and Drug
Administration (SFDA), in July 2007 after he was charged with
accepting bribes from pharmaceutical companies in exchange for
approving drug production licenses.\58\ Commentators have noted
that Zheng's swift trial and execution were meant to serve as a
warning to other officials,\59\ but it remains to be seen if
Zheng's execution will serve as an adequate deterrent and have
a lasting impact, especially given the lack of mechanisms in
place to consistently and effectively address official
corruption and counterfeit products.
Amid recent incidents, the central government highlighted
the forthcoming release of a revised drug registration
regulation and its funding pledge of 8.8 billion yuan (US$1.1
billion), which was first approved in 2005 as part of the
government's 11th Five-Year Plan (2006-2010). The regulations
charge the SFDA with the responsibility to fine companies that
submit counterfeit drug samples or inaccurate information, to
establish a panel system to review drug approvals, to raise
approval standards, and to disclose on the Internet the name of
the official reviewing a drug application and its stage in the
submission process.\60\ The SFDA and corresponding bureaus will
use the 8.8 billion yuan to improve infrastructure, such as the
renovation or building of inspection and testing facilities.
The central government will contribute 71 percent of the funds,
with the remainder coming from local governments.\61\
Despite these initiatives, serious challenges remain,
including local government implementation of legislative
measures, official corruption, and inadequate attempts to
address the counterfeiting of products. Overall, enforcement
remains hindered by China's existing regulatory structure, such
as local food and drug safety bureaus that are beholden to
local governments for their budgetary and personnel
allocations, and national agencies providing these bureaus with
non-binding and often unfunded policy directives for
implementation.\62\ Local government officials, whose
promotions are largely based on their ability to promote
economic growth, have more incentive to allow the
counterfeiting of products than to effectively regulate drug
and product safety.\63\ In addition, regulatory loopholes
hamper the government's oversight ability, with dangerous
consequences for consumers. For example, in the case involving
at least 100 reported deaths in Panama due to the use of
diethylene glycol in cough medicine, the Ministry of Foreign
Affairs noted that neither the chemical company that made the
cough medicine, nor the state-owned company that exported it,
fell under the regulatory supervision of the SFDA.\64\ These
companies were not classified as pharmaceutical production or
sales businesses. In the case of the chemical company, it
classified itself as making chemical industry raw material and
was not licensed to make pharmaceutical products nor subject to
inspections under the SFDA.\65\
Limited civil society activity, as well as continued
official harassment of whistleblowers, place additional
limitations on the government's ability to effectively regulate
the drug and product industries and ensure consumer safety.
Currently, there is a lack of effective consumer protection
laws and very few consumer associations or other civil society
groups to help monitor the quality and safety of consumer
products.\66\ Instead, public officials continue to punish
those who try to notify others, via the Internet or through
other forms of communication, of collusion between food and
drug agencies and industry, or of unsafe or unconscionable
industry practices.\67\
In 2006, law enforcement officials in Haikou city, Hainan
province, detained Zhang Zhijian for nine months for reposting
an anonymously written essay on the Internet that detailed
collusion between high-level officials in the SFDA and a
pharmaceutical company.\68\ Public security officials detained
him on ``suspicion of damaging company reputation'' after the
company filed a complaint. He was finally released after
investigations revealed that the accusations of collusion and
corruption were true.\69\ As a result of his detention, Zhang
lost his job and reported difficulty finding other
employment.\70\ On March 26, 2007, Zhang filed a lawsuit with a
Haikou city court seeking state compensation for wrongful
detention and damage to reputation.\71\ The court awarded Zhang
24,000 yuan (US$3,190) on July 20, 2007.\72\
In another case, Zhou Huanxi posted a story online in March
2007 that described how the company she worked for made
substandard tonic for pregnant women.\73\ When she initially
tried to inform public officials in 2002, her employer fired
her from her job and she was imprisoned for three years and six
months on charges of extortion.\74\ Zhou was released in
November 2005.\75\ Although there are provisions in the State
Compensation Law that allow for individuals to sue the
government for wrongful punishment, these provisions are not
traditionally thought of as a whistleblower protection law
since they only apply after the fact, nor are there other
whistleblower protection laws currently in place.\76\
CLIMATE CHANGE
Some Chinese government officials reportedly have made
statements that recognize that human activity worldwide is
contributing to greenhouse gas (GHG) emissions. For example,
China's first National Report on Climate Change, released in
December 2006 by the Ministry of Science and Technology,
concludes that ``greenhouse gas (GHG) emissions from human
activity contribute to increasingly serious global climate
change problem.'' \77\ China's domestic stance regarding
climate change, however, is quite different from its stance in
international forums. Internationally, China assumes the
posture of a developing country, which drives much of its
behavior with respect to the issue of climate change in the
international context. Since 2002, China has announced domestic
goals and initiated reforms that are aimed at energy security
and China's economic development strategies, but these policies
can also help to combat climate change if implemented properly
at the local level. There is, however, no current policy that
directly addresses China's heavy reliance on coal, and current
measures are not enough to stop emissions from increasing
significantly. It is unlikely that China will accept a
mandatory reduction in its GHG emissions.\78\
The Chinese government changed its stance on climate change
in 2002 as China's energy consumption growth surpassed its
economic growth for the first time in modern history.\79\ China
could no longer claim that it was not contributing to the
severity of global GHG emissions as it pursued rapid
industrialization. President Hu Jintao's administration came
into power at the same time and pledged to move away from the
``economic growth at all costs'' stance of his predecessor to a
policy approach that, in Hu's words, called for ``scientific
development'' and a ``harmonious society'' with a focus on
conservation and sustainable development (``circular
economy'').\80\ These two pledges reflect concerted efforts to
combat climate change, and public officials have taken some
steps to mitigate and adapt to climate change by adopting laws
and other policy initiatives and by establishing a National
Coordination Committee. Public officials could achieve more,
but they are hampered by ineffective administrative and market
incentives that fail to encourage local compliance, and by
limitations on civil society activity.
Since 2002, China's annual GHG emissions have also
increased rapidly due to strong economic growth and an
increasing demand for energy.\81\ The International Energy
Agency has projected that China will surpass the United States
in annual GHG emissions by 2010, and possibly as early as
2007.\82\ In June 2007, the Netherlands Environmental
Assessment Agency noted that China's emissions for 2006
surpassed the emissions from the United States in that
year.\83\ Although China's per capita GHG emissions and
cumulative GHG emissions are still comparatively low,\84\ its
increasing share of global GHG emissions may be a trend that
cannot be significantly reduced or reversed without
governmental intervention.
China's International Response to Climate Change
China ratified the UN Framework Convention on Climate
Change in 1993 and the Kyoto Protocol (Protocol) in 2002.\85\
As a non-Annex 1 (developing) country, China has no binding
emissions limits under the Protocol's first commitment period
from 2008 to 2012. China is, however, an active participant in
the Clean Development Mechanism established under the Protocol,
which allows developed countries to use emissions credits for
reductions in developing countries toward their own Protocol
targets.\86\ Despite China's increasing share of global GHG
emissions, its current position as a developing country
translates into ``common but differentiated'' responsibilities
that are based more on its level of historical responsibility
for the problem, its level of economic development, and its
capability to act on the problem, than on its current annual
GHG emissions rate.\87\ The Chinese government continues to
welcome international cooperation, and bilateral and
multilateral exchanges with the United States and other
countries in the form of the Asia-Pacific Partnership on Clean
Development and Climate and the China-EU Partnership, that help
to promote clean energy production projects and technology
transfer.\88\
China's Domestic Response to Climate Change
Motivated by energy security concerns and its economic
growth targets, the Chinese government has announced domestic
goals and initiated numerous reforms which, if effectively
implemented, could help to combat climate change by conserving
energy, reducing pollutant emissions, and increasing the use of
renewable energy. The government has also enacted laws that
relate to energy conservation, including the Energy
Conservation Law (1997) and the National Renewable Energy Law
(2005). There is, however, no policy that directly addresses
China's heavy reliance on coal, and current measures are not
enough to stop such emissions from increasing
significantly.\89\
In its 11th Five-Year Plan (2006-2010), the central
government has pledged to ``conserve energy and reduce
pollution,'' but has failed to meet goals set forth in the
plan.\90\ In 2006, China's energy consumption per unit of GDP
decreased by 1.2 percent despite a stated goal of 4
percent.\91\ Similarly, air and water pollutant levels in 2006
increased by 1.8 and 1.2 percent, respectively, despite the
government's stated goal of reducing pollutants by 2
percent.\92\ The failure to meet such goals may indicate that
administrative and market-oriented incentives in place at the
local level are inadequate to persuade local officials to adopt
more sustainable forms of economic growth.\93\
Over the past year, the government published reports that
suggest a high level of government attention to the issue of
climate change, but it remains to be seen how vigorous local
implementation will be. The central government released its
first National Assessment Report on Climate Change in December
2006,\94\ and a General Work Plan for Energy Conservation and
Pollutant Discharge Reduction on June 4, 2007, that outlines
how China intends to address climate change over the next five
years.\95\ The plan's release was delayed due to reported
differences in official views at the national and local levels,
but it was eventually published ahead of the opening of the G8
summit on June 6, 2007. Specifically, the plan establishes the
formation of regional administration systems to better
coordinate interagency work on climate change, energy
efficiency, and renewable energy.\96\ The plan also establishes
a ``National Leading Group on Climate Change,'' headed by
Premier Wen Jiabao. In addition, there have been increases in
the level of staffing for key agencies such as the statistics
bureaus, which can strengthen data collection so as to better
inform policy decisions.\97\
Effects of Climate Change and Expanding the Debate on Climate Change
The effects of China's heavy reliance on coal, the
resultant pollution and GHG emissions, and policies to address
these issues, have serious implications for domestic and
international citizens' public health, and the global
environment and economy. For example, air pollutants from China
have been detected on the west coast of the United States, and
sand storms that originate in China have reached its Asian
neighbors.\98\ Energy conservation and pollution reduction, and
policies that address these issues, are thus also quality of
life and public safety issues, exacerbated by official inaction
or complicity that results in perceived harm. In addition,
access to energy in rural areas, the contribution that energy
security can provide in the development of the rule of law and
government transparency, and the still preliminary level of
engagement of domestic civil society organizations in work on
climate change are
examples of additional issues that are not part of the
traditional debate on climate change.
Policy approaches that attempt to control large amounts of
emissions from a group of sources face greater challenges and
are not as well-developed in China as they are elsewhere. In
one such approach the government mandates an overall cap, or
the maximum amount of emissions per compliance period, and lets
sources, such as companies, decide how to use their individual
emissions allowances. Under this system, known as cap and
trade, a company might decide to use pollution control
technology or more efficient energy sources in order to not
exceed its cap, or purchase additional allowances from other
companies if the company believes it will exceed its cap.
Companies able to lower their emissions below their allotted
allowance can have the difference credited for later use or
sell these credits to another company for a profit.\99\ This
approach has been used in the United States with regard to
sulfur dioxide emissions.\100\ In part because some plants
increase levels of pollutants and receive credits for reducing
them later, cap and trade systems are not foolproof. There is
also concern that emissions allowances for certain practices,
such as agricultural offsets, may be overvalued, without a way
to properly measure and verify if this is indeed the case.\101\
Given China's current information collection system, level
of transparency, and accountability, it is not clear whether a
system that depends on these factors can be implemented in a
manner that effectively reduces carbon dioxide and other
greenhouse gases. Challenges that confront effective
implementation in China include the government's inability to
accurately and consistently collect data on emissions, which is
essential to establishing and maintaining an effective
program.\102\ In addition, the government must have
accountability mechanisms in place that allow for the accurate
reporting of emissions, and the rigorous and consistent
enforcement of penalties for fraud and noncompliance.
Transparency in areas such as public access to source-level
emissions and allowance data are also important.\103\ The
accuracy and consistency of information, accountability, and
transparency are all issues associated with persistent
institutional challenges in China. [See Section II--Freedom of
Expression and Section II--Rights of Criminal Suspects and
Defendants.] Other options exist that may help to reduce
greenhouse gas emissions. Some that are being attempted or
discussed in other countries as well as in China include:
implementing a tax on carbon emissions, regulatory measures
that require industries to use the cleanest available
technologies, policies that promote research and development
into clean technologies, and policy changes that favor non-
carbon emitting technologies such as nuclear or wind power
generation.
IV. Tibet: Special Focus for 2007
FINDINGS
No progress in the dialogue between China and
the Dalai Lama or his representatives is evident. After
the Dalai Lama's Special Envoy returned to India after
the sixth round of dialogue, he issued the briefest and
least optimistic statement to date. Chinese officials
showed no sign that they recognize the potential
benefits of inviting the Dalai Lama to visit China so
that they can meet with him directly.
Chinese government enforcement of Party policy
on religion resulted in an increased level of
repression of the freedom of religion for Tibetan
Buddhists during the past year. The Communist Party
intensified its long-running anti-Dalai Lama campaign.
Tibetan Buddhism in the Tibet Autonomous Region (TAR)
is coming under increased pressure as recent legal
measures expand and deepen government control over
Buddhist monasteries, nunneries, monks, nuns, and
reincarnated lamas. The Chinese government issued legal
measures that if fully implemented will establish
government control over the process of identifying and
educating reincarnated Tibetan Buddhist teachers
throughout China.
Chinese authorities continue to detain and
imprison Tibetans for peaceful expression and non-
violent action, charging them with crimes such as
``splittism,'' and claiming that their behavior
``endangers state security.'' The Commission's
Political Prisoner Database listed 100 known cases of
current Tibetan political detention or imprisonment as
of September 2007, a figure that is likely to be lower
than the actual number of Tibetan political prisoners.
Based on sentence information available for 64 of the
current prisoners, the average sentence length is 11
years and 2 months. Tibetan Buddhist monks and nuns
make up a separate set of 64 of the known currently
detained or imprisoned Tibetan political prisoners as
of September 2007, according to data available in the
Commission's Political Prisoner Database. Based on data
available for 42 currently imprisoned Tibetan monks and
nuns, their average sentence length is 10 years and 4
months. (It is a coincidence that the number of monks
and nuns, and the number of prisoners for whom the
Commission has sentence information available, are both
64).
In its first year of operation, the Qinghai-
Tibet railway carried 1.5 million passengers into the
TAR, of whom hundreds of thousands are likely to be
ethnic Han and other non-Tibetans seeking jobs and
economic opportunities. The government is establishing
greater control over the Tibetan rural population by
implementing programs that will bring to an end the
traditional lifestyle of the Tibetan nomadic herder by
settling them in fixed communities, and reconstructing
or relocating farm
villages.
INTRODUCTION
The human rights environment that the Communist Party and
Chinese government enforce in the Tibetan areas of China has
not improved over the past five years, and has deteriorated
since 2005. No progress in the dialogue between China and the
Dalai Lama or his representatives is evident. Implementation of
China's Regional Ethnic Autonomy Law is weak and prevents
Tibetans from realizing the law's guarantee that ethnic
minorities have the ``right to administer their internal
affairs.'' The Communist Party tolerates religious activity
only within strict limits imposed by China's constitutional,
legal, and policy framework. Legal measures issued in 2006 and
2007 impose unprecedented government control on Tibetan
Buddhist activity. Party campaigns that seek to discredit the
Dalai Lama as a religious leader, to portray him and those who
support him as threats to China's state security, and to
prevent Tibetans from expressing their religious devotion to
him have intensified since 2005.
The government and Party prioritize economic development
over cultural protection, eroding the Tibetan culture and
language. Changes in Chinese laws and regulations that address
ethnic autonomy issues and that have been enacted since 2000,
when the government implemented the Great Western Development
program, tend to decrease the protection of ethnic minority
language and culture. The Qinghai-Tibet railway began service
in July 2006 and has carried thousands of passengers to Lhasa
each day, leading to crowded conditions in the city and
increased pressure on the Tibetan culture. In recent years,
governments in some Tibetan areas have accelerated the
implementation of programs that require nomadic Tibetan herders
to settle in fixed communities. The Chinese government applies
the Constitution and law in a manner that restricts and
represses the exercise of human rights by Tibetans, and that
uses the law to punish peaceful expression and action by
Tibetans deemed as threats to state security. The government
made no progress in the past year toward improving the right of
Tibetans in China to exercise their constitutionally guaranteed
freedoms of religion, expression, and assembly. Such
restrictions are inconsistent with the Chinese government's
obligations under international human rights standards.
STATUS OF DISCUSSION BETWEEN CHINA AND THE DALAI LAMA
Commission Recommendations, U.S. Policy, and the Report on Tibet
Negotiations
Commission Annual Reports in 2002, 2004, 2005, and 2006
included recommendations in support of the dialogue between the
Chinese government and the Dalai Lama or his representatives.
The Commission has observed no evidence of substantive progress
in that dialogue toward fair and equitable decisions about
policies that could help to protect Tibetans and their
religion, language, and culture, even though a session of
dialogue took place each year beginning in 2002, and even
though a basis for such protections exists under China's
Constitution and law.\1\ In response to the lack of progress
over the years, the Commission strengthened recommendations in
successive annual reports.\2\ The 2006 Annual Report called for
efforts to persuade the Chinese government to invite the Dalai
Lama to visit China so that he could seek to build trust
through direct contact with the Chinese leadership.\3\ In 2007,
Chinese officials continued to allow the potential mutual
benefits of the dialogue process--a more secure future for
Tibetan culture and heritage, and improved stability and ethnic
harmony in China--to remain unrealized.
The U.S. Congress will award the Congressional Gold Medal
to the Dalai Lama on October 17.\4\ The congressional act
providing for the award finds that the Dalai Lama ``is the
unrivaled spiritual and cultural leader of the Tibetan people,
and has used his leadership to promote democracy, freedom, and
peace for the Tibetan people through a negotiated settlement of
the Tibet issue, based on
autonomy within the People's Republic of China.'' \5\
U.S. government policy recognizes the Tibet Autonomous
Region (TAR) and Tibetan autonomous prefectures and counties\6\
in other provinces to be a part of China.\7\ The Department of
State's 2007 Report on Tibet Negotiations articulates U.S.
Tibet policy:
Encouraging substantive dialogue between Beijing and
the Dalai Lama is an important objective of this
Administration. The United States encourages China and
the Dalai Lama to hold direct and substantive
discussions aimed at resolution of differences at an
early date, without preconditions. The Administration
believes that dialogue between China and the Dalai Lama
or his representatives will alleviate tensions in
Tibetan areas and contribute to the overall stability
of China.\8\
The Report on Tibet Negotiations observes that the Dalai
Lama ``represents the views of the vast majority of Tibetans,''
and that ``his moral authority helps to unite the Tibetan
community inside and outside of China.'' \9\ The report
cautions that ``the lack of resolution of these problems leads
to greater tensions inside China and will be a stumbling block
to fuller political and economic engagement with the United
States and other nations.'' The report rejects the notion that
the Dalai Lama is seeking Tibetan independence:
[T]he Dalai Lama has expressly disclaimed any intention
to seek sovereignty or independence for Tibet and has
stated that he only seeks for China to preserve Tibetan
culture, spirituality, and environment.\10\
The President and other senior U.S. officials have pressed
Chinese leaders to move forward in the dialogue process,
according to the Report on Tibet Negotiations. In April and
November 2006, President Bush urged President Hu Jintao to
continue the dialogue and hold direct discussions with the
Dalai Lama.\11\ Secretary of State Condoleezza Rice called on
Foreign Minister Li Zhaoxing to engage in direct talks with the
Dalai Lama when they met at the UN General Assembly in
September 2006.\12\ When Secretary Rice traveled to China in
October 2006, she reiterated the request for direct dialogue
between Chinese officials and the Dalai Lama.\13\ Under
Secretary of State for Democracy and Global Affairs Paula
Dobriansky, who has served since 2001 as the Special
Coordinator for Tibetan Issues and as a CECC Commissioner,\14\
traveled to Beijing in August 2006 and raised ``the need for
concrete progress'' during meetings with officials including
Executive Vice Foreign Minister Dai Bingguo and Assistant
Foreign Minister Cui Tiankai, according to the Report on Tibet
Negotiations.\15\ Deputy Secretary of State John Negroponte
raised the same issues during a February 2007 visit to
China.\16\
Dalai Lama's Envoys' Fifth Visit to China; Discussions with the Party's
UFWD
The Dalai Lama's envoys visited China for the fifth
time\17\ from June 29 to July 5, 2007, to engage in their sixth
round of dialogue with Chinese officials.\18\ The trip
culminated with the briefest\19\ and least optimistic statement
issued after any of the previous rounds of dialogue. Special
Envoy Lodi Gyari\20\ reported that he and Envoy Kelsang
Gyaltsen engaged in three ``sessions of discussion'' in
Shanghai and Nanjing, the capital of Zhejiang province, over a
one and one-half day period.\21\ The statement provided no
details about the topics the envoys discussed in meetings, or
about their activities and location during the remainder of
their visit. Unlike previous statements, the Special Envoy's
statement did not close with an expression of ``appreciation''
to Chinese officials and hosts, perhaps signaling an increased
level of frustration.
Gyari's statement acknowledged that the dialogue process
had reached a ``critical stage,'' and that ``[b]oth sides
expressed in strong terms their divergent positions and views
on a number of issues.'' Referring to the lack of progress,
Gyari said, ``We conveyed our serious concerns in the strongest
possible manner on the overall Tibetan issue and made some
concrete proposals for implementation if our dialogue process
is to go forward.'' \22\ The statement provided no details
about the proposals that the envoys hope Chinese officials will
implement.
In China, the envoys met with the Communist Party's United
Front Work Department (UFWD) Deputy Head Zhu Weiqun and UFWD
Seventh Bureau Director Sithar (or Sita).\23\ The UFWD oversees
the implementation of Party policy toward China's eight
``democratic'' political parties, ethnic and religious groups,
intellectuals, and entrepreneurs, among other functions. The
UFWD established the Seventh Bureau in 2005 and appointed
Sithar as Director, according to a September 2006 Singtao Daily
report.\24\ The Tibetan affairs portfolio moved from the Second
Bureau, which handles ethnic and religious affairs, to the new
Seventh Bureau. Sithar previously served as a deputy director
of the Second Bureau.\25\
The creation of the UFWD Seventh Bureau may signal that the
Party leadership has attached increased importance to Tibetan
issues, such as the ongoing dialogue with the Dalai Lama's
representatives. The mission of the Seventh Bureau, according
to the Singtao Daily report, is ``to cooperate with relevant
parties in struggling against secessionism by enemies, both
local and foreign, such as the Dalai Lama clique, and to liaise
with overseas Tibetans.'' \26\ The report notes that Party
leaders are concerned
principally about the ``development of the Tibet independence
movement in the `post-Dalai Lama era'.'' \27\
UFWD officials with whom the Dalai Lama's envoys meet also
hold additional posts in governmental, advisory, and NGO
spheres that increase and extend their influence on the future
of Tibetan culture, religion, and language. Liu Yandong, whom
the envoys met during trips to China in 2003 and 2004,\28\ is
head of the UFWD, Vice Chairman of the Chinese People's
Political Consultative Conference, and the Honorary President
of China Association for Preservation and Development of
Tibetan Culture (CAPDTC), a
Chinese NGO founded in June 2004 that describes its legal
status as ``independent.'' \29\ Zhu is a member of the CCP
Central Commission for Discipline Inspection, a senior official
of the State Council Information Office,\30\ a cabinet-level
part of the Chinese government, and the Vice President of
CAPDTC.\31\ Sithar is CAPDTC's Vice Chairman.\32\
A Tibetan Vision of Autonomy: The Special Envoy Provides More Detail
In 2006 and 2007, the Dalai Lama, Special Envoy Lodi Gyari,
and the elected head of the Tibetan government-in-exile,
Samdhong Rinpoche, increased their efforts to advocate their
vision of Tibetan autonomy under Chinese sovereignty, and to
provide more detailed statements about their proposed formula.
In his annual March 10, 2007, statement,\33\ the Dalai Lama
asserted, ``The most important reason behind my proposal to
have genuine national regional
autonomy for all Tibetans is to achieve genuine equality and
unity between the Tibetans and Chinese by eliminating big Han
chauvinism and local nationalism.'' \34\ In testimony before
the U.S. House of Representatives Foreign Affairs Committee on
March 13, 2007, Gyari stated, ``In treating the Tibetan people
with respect and dignity through genuine autonomy, the Chinese
leadership has the opportunity to create a truly multi-ethnic,
harmonious nation without a tremendous cost in human
suffering.'' \35\ Samdhong Rinpoche told a gathering of
advocacy groups in Brussels in May 2007, ``We are simply asking
for the sincere implementation of the national regional
autonomy provisions enshrined in the Constitution of the
People's Republic of China, which is further spelt out in the
autonomy law.'' \36\
The basis of the Tibetan negotiating position continues to
be the Dalai Lama's Middle Way Approach,\37\ which renounces
Tibetan independence in exchange for genuine autonomy. An
outcome of the dialogue process that would fulfill Tibetan
wishes in a manner consistent with the Middle Way Approach
would require the Chinese government's agreement to:
The inclusion under the agreement of all the
areas in China that many Tibetans regard as ``the three
traditional provinces of Tibet,'' or about one-quarter
of China;\38\
The unification of that area under one
genuinely autonomous administration; and
The empowerment of the residents of the
resulting administrative area to elect a government
through a democratic process.
Gyari identified the Chinese response to the Tibetan
demands that ``the entire Tibetan people need to live under a
single administrative entity,'' and that Tibetans practice
``genuine autonomy,'' as the principal area of disagreement in
a November 2006 address at the Brookings Institution in
Washington, D.C.\39\ His prepared statement\40\ and responses
to questions\41\ were more detailed than remarks Gyari made
after the previous rounds of dialogue. The Dalai Lama
emphasized his commitment to the same principles in March 2006,
saying in his March 10 speech, ``I have only one
demand: self-rule and genuine autonomy for all Tibetans, i.e.,
the Tibetan nationality in its entirety.'' \42\ Samdhong
Rinpoche underscored the importance Tibetans place on including
all Tibetans in a reconfigured Tibet when he addressed advocacy
groups in May: ``[A]ll Tibetans must be administered by a
single autonomous self-government.'' \43\
Like many Tibetans, Gyari refers to all of the territory in
China where Tibetans live as ``Tibet.'' ``[I]t is a reality
that the landmass inhabited by Tibetans constitutes roughly
one-fourth\44\ the territory of [China],'' he said in his
Brookings statement.\45\ The Chinese government ``has already
designated almost all Tibetan areas as Tibet autonomous
entities. . . . Thus, our positions on what constitutes Tibet
are really not so divergent.'' \46\ The land area that Tibetans
claim as Tibet is about 100,000 square miles larger than the
total area of the TAR and the Tibetan autonomous prefectures
and counties designated by China.\47\ Aside from pockets of
long-term Tibetan settlement in Qinghai province,\48\ most of
the area that
Tibetans claim beyond the existing Tibetan autonomous areas is
made up of autonomous prefectures and counties allocated to
other ethnic groups.\49\ Ten counties in that area have
populations that are between 5 and 25 percent Tibetan,
according to official 2000 census data.\50\ The precise portion
of the approximately 100,000 square mile area that Tibetans
claim as Tibet, and where the Tibetan population is less than 5
percent,\51\ is unknown because a map that indicates the
boundary of Tibet with respect to current Chinese
administrative geographic divisions at the prefectural and
county levels is not available.
Gyari addressed the critics of proposed administrative
unification of land where Tibetans live, saying, ``Having the
Tibetan people under a single administrative entity should not
be seen as an effort to create a `greater' Tibet, nor is it a
cover for a separatist plot.'' \52\ Tibetans ``yearn to be
under one administrative entity so that their way of life,
tradition, and religion can be more effectively and peacefully
maintained,'' he said, and pointed out that the Chinese
government ``has redrawn internal boundaries when it suited its
needs.'' \53\ Gyari's prepared statement cites as an example
the abolition in 1955 of Xikang province upon the completion of
the division of its territory between Sichuan province and what
later became the TAR.\54\
Establishing a unified Tibetan autonomous administrative
area such as the Special Envoy described would involve all of
the TAR, all or most of Qinghai province, approximately half of
Sichuan province, parts of Gansu and Yunnan provinces, and
according to some maps, a small part of Xinjiang Uighur
Autonomous Region.\55\ Under China's Constitution, establishing
or changing units of administrative geography would require
approval by the National People's Congress (NPC) or the State
Council, or both.\56\
The Dalai Lama and Lodi Gyari provided more detailed
statements than previously about their expectations of
``genuine autonomy,'' which can be compared to the prevailing
situation under the Regional Ethnic Autonomy Law (REAL).\57\
Although the REAL declares in its Preamble that the practice of
autonomy conveys the state's ``full respect for and guarantee
of ethnic minorities' right to administer their internal
affairs,'' \58\ the Dalai Lama explained in his March 10, 2007,
statement the manner in which he believes the REAL has failed
ethnic groups like Tibetans:
The problem is that [regional ethnic autonomy] is not
implemented fully, and thus fails to serve its express
purpose of preserving and protecting the distinct
identity, culture and language of the minority
nationalities. What happens on the ground is that large
populations from the majority nationalities have spread
in these minority regions. Therefore, the minority
nationalities, instead of being able to preserve their
own identity, culture and language, have no choice but
to depend on the language and customs of the majority
nationality in their day-to-day lives.\59\
Gyari's statement to the Brookings Institution implied that
a solution to the autonomy issue would have to reach beyond the
REAL's status quo, and perhaps be innovative. He discussed the
Tibetan need for autonomy in the context of the higher level of
rights that Hong Kong and Macao enjoy under their status as
special administrative regions (SARs).\60\ Gyari said that the
Tibetans have not proposed to their Chinese interlocutors any
specific autonomy formula or administrative title, such as an
SAR, and stressed, ``[W]e place more importance on discussing
the substance than on the label.'' \61\ Samdhong Rinpoche
maintained that a solution is available within the existing
constitutional and legal environment: ``The PRC leadership can
very easily grant whatever we are asking for, if they have the
political will. They need not have to amend their constitution
nor make a major shift in their policies.'' \62\
The Tibetan Vision of Autonomy Versus China's Constitution and Law
The outlook for what the Tibetans call ``genuine autonomy''
under the current implementation of the REAL is poor. Communist
Party control over China's legislative, governmental,
policymaking, and implementation process, as well as
contradictory provisions in Chinese laws and regulations,
undercut the practice of regional ethnic autonomy in China. As
a result, the functional level of autonomy that Chinese laws
and regulations provide to local Tibetan autonomous governments
to ``administer their internal affairs,'' \63\ to protect their
culture, language, and religion, and to manage policy
implementation on issues such as economic development and the
environment, is negligible.
Recent laws, regulations, and local implementing measures
consistently prioritize the central government's interests
above protecting the right of ethnic autonomous governments to
exercise self-government.\64\ The same legal issues that
minimize the level of local autonomy for Tibetans serve to
diminish the prospects for substantive progress in dialogue
between Chinese officials and the Dalai Lama and his envoys.
The following examples of how China's application of law
adversely affects Tibetan autonomy are indicative, not
comprehensive. [See Section II--Ethnic Minority Rights for more
information on the REAL.]
The REAL Provides Subordination, Not Self-government
Article 7 of the REAL counteracts the Preamble's guarantee
that ethnic autonomous governments have the right to
``administer their own affairs'' by directing that,
``Institutions of self-government in ethnic autonomous areas
shall place the interests of the state as a whole above all
else and actively fulfill all tasks assigned by state
institutions at higher levels.''
The REAL Provides a Basis To Divide Tibetan Areas, Not To Unify Them
Tibetan leaders, including Lodi Gyari and Samdhong
Rinpoche, have described their vision in the past year that
China's Constitution and law, including the REAL, can support
the unification of Tibetan autonomous areas.\65\ The
Constitution and REAL do not state explicitly whether or not
contiguous areas where the same ethnic group lives are entitled
to be included in the same ethnic autonomous area. In fact,
Article 12 of the REAL provides the Chinese government a basis
in law for division by allowing the establishment of ethnic
autonomous areas to take into consideration factors such as
``historical background'' and ``the relationship among the
various nationalities.'' \66\ Because the National People's
Congress (NPC) and State Council have the constitutional
authority to approve the establishment of autonomous regions,
prefectures, and counties, and to alter their geographic
divisions,\67\ it is Beijing's view of history and ethnic
relations that guides decisions to apply the REAL in a manner
that unites--or divides--ethnic groups.
Conflict of Law Limits Rights Provided by the Constitution and REAL
The Constitution and REAL state that ethnic autonomous
congresses have the power to enact autonomy or self-governing
regulations ``in the light of the political, economic, and
cultural characteristics'' of the relevant ethnic group(s).\68\
But the Legislation Law reserves to the State Council the power
to issue regulations when the NPC specifically authorizes the
State Council to do so, thereby intruding upon the right of
ethnic autonomous congresses to issue regulations.\69\ These
provisions in the Legislation Law explicitly create a conflict
of law with respect to rights provided by the Constitution and
the REAL. The Legislation Law authorizes an autonomous people's
congress to enact an ``autonomous decree or a special decree''
that must be approved by the standing committee of the next
higher level people's congress.\70\
The Legislation Law Bars Autonomous Governments From Altering Laws and
Regulations That Concern Autonomy
The REAL includes a provision allowing an ethnic autonomous
government to apply to a higher-level state agency to alter or
cancel the implementation of a ``resolution, decision, order,
or instruction'' if it does not ``suit the actual conditions in
an ethnic autonomous area.'' \71\ The Legislation Law, however,
bars ethnic autonomous governments from enacting any variance
to any law or regulation that is ``dedicated to matters
concerning ethnic autonomous areas.'' \72\
Special Administrative Regions Offer More Flexibility
The Chinese Constitution provides a method to create a
political and administrative solution to challenges that the
principal body of Chinese law cannot resolve. Article 31
empowers the state to establish a ``special administrative
region'' (SAR) that can satisfy a particular need ``when
necessary,'' and authorizes the NPC to enact a law that
institutes a ``system'' (of governance and administration) ``in
the light of the specific conditions.'' \73\ Hong Kong and
Macao are the only SARs created by the NPC to date. Chinese
officials reject the notion that a Tibetan solution could be
developed by establishing a special administrative region,\74\
but their arguments use as proof the dissimilarity of the pre-
reunification political and economic systems of Hong Kong and
Macao (not reunited with China, democratic government,
capitalist economy) compared with the current political and
economic system in the Tibetan autonomous areas of China
(Chinese administration, non-democratic government, socialist
economy). The language in Article 31, however, states no
prerequisites of any kind and allows the state to create the
solution that it needs.
RELIGIOUS FREEDOM FOR TIBETAN BUDDHISTS
Commission Recommendations and China's Record
Commission Annual Reports from 2002 to 2006 included
recommendations calling for the Chinese leadership to ``promote
the concept of religious tolerance,'' \75\ to ``meet with
religious figures from around the world to discuss the positive
impact on national development of free religious belief and
religious tolerance,'' \76\ and to take measures to develop the
freedom of religion in China including respecting ``the right
of Tibetan Buddhists to freely express their religious devotion
to the Dalai Lama.'' \77\
The Commission cannot report improvement in the overall
level of freedom of religion for Tibetan Buddhists at any time
during the past five years, and in the past year the
environment for Tibetan Buddhism has become significantly more
repressive. The Party led an intensified anti-Dalai Lama
campaign\78\ and an expanding program of patriotic
education,\79\ and two sets of new legal measures imposing
stricter and more detailed controls on Tibetan Buddhist
institutions and religious activity took effect.\80\ In the
Tibet Autonomous Region (TAR), the government began on January
1, 2007, to implement new legal measures issued in September
2006 that regulate fundamental aspects of Tibetan Buddhism in a
stricter and more detailed manner than previous measures.\81\
The State Administration for Religious Affairs (SARA) issued
legal measures in July 2007 that empower the government and
Party to gradually reshape Tibetan Buddhism by controlling the
religion's most important and unusual feature--lineages of
reincarnated Buddhist teachers that Tibetan Buddhists believe
can span centuries.\82\
Although the Party tolerates religious activity only within
the strict limits imposed by China's constitutional, legal, and
policy framework, and the government further restricts those
limits at will, Chinese authorities tolerate selected Tibetan
Buddhist practices and expressions of religious belief,\83\ and
the intensity of religious repression against Tibetans varies
across regions.\84\
[See Section II--Freedom of Religion for more information
on Party and government control of religion.]
TAR Party Chief Intensifies Anti-Dalai Lama Campaign, Patriotic
Education
Tibetan Buddhism is at the core of Tibetan culture and
self-identity, and for most Tibetans the Dalai Lama is at the
core of Tibetan Buddhism. Seeking to strengthen control over
Tibetan Buddhism and to end the Dalai Lama's influence over
Tibetans, the Communist Party intensified a long-running
campaign during the past year to discredit the Dalai Lama as a
religious leader, to portray him and those who support him as
threats to China's state security, and to prevent Tibetans from
expressing their religious devotion to him.
TAR Party Secretary Zhang Qingli took on the role of a
high-profile representative of the anti-Dalai Lama campaign in
late 2005, when the Party's Central Committee transferred him
to the TAR from the Xinjiang Uighur Autonomous Region.\85\ In
an August 2006 interview with a Western magazine, Zhang
attacked the Dalai Lama's Buddhist credentials, accusing him of
being a ``false religious leader'' who has led Tibetans astray
and done ``many bad things . . . that contradict the role of a
religious leader'' since he fled into exile in 1959.\86\ Zhang
urged the Party to ``clearly distinguish between proper
religious activities and the use of religion to engage in
separatist activities,'' an expression that can refer to
peaceful expressions of religious devotion to the Dalai Lama.
Zhang described the Party's conflict with the Dalai Lama and
the ``Western hostile forces'' \87\ that support him as ``long
term, sharp, and complex,'' and ``even quite intense at
times.'' \88\
Zhang rallied hundreds of Party members at a May 2007
meeting in Lhasa, the capital of the TAR, telling them, ``From
beginning to end . . . we must deepen patriotic education at
temples, comprehensively expose and denounce the Dalai Lama
clique's political reactionary nature and religious
hypocrisy.'' \89\ Patriotic education (``love the country, love
religion'')\90\ is an open-ended campaign to bring to an end
the Dalai Lama's religious authority among Tibetans, and that
requires Tibetan Buddhists to accept patriotism
toward China as a part of Tibetan Buddhism. Patriotic education
sessions require monks and nuns to pass examinations on
political texts, agree that Tibet is historically a part of
China, accept the legitimacy of the Panchen Lama installed by
the Chinese government, and denounce the Dalai Lama.'' \91\
Monitoring organizations confirmed in 2007 that officials are
increasing patriotic education activity in monasteries and
nunneries.\92\ In one case, the abbot of a monastery in Qinghai
province was forced to step down in May after he refused to
sign a denunciation of the Dalai Lama.\93\
In May 2006, Zhang called on TAR Party and government
officials to intensify restructuring and ``rectification'' of
Democratic Management Committees (DMCs),\94\ and to ``[e]nsure
that leadership powers at monasteries are in the hands of
religious personages who love the country and love religion.''
\95\ DMCs,\96\ located within each monastery and nunnery, are
the Party's direct interface with monks and nuns, and are
charged by the Party and government to implement policies on
religion and ensure that monks and nuns obey government
regulations on religious practice.
An official poster reportedly displayed in a Tibetan
Buddhist monastery in Sichuan province listed the DMC's main
functions, including to ``[u]phold the leadership of the
Chinese Communist Party, love the county and love religion, and
progress in unity'' and to ensure that ``[n]o activities may be
carried out under the direction of forces outside the
country.'' \97\ The same document instructs the DMC on its
``professional responsibilities,'' such as, ``To collectively
educate the monastery's monks and religious believers to abide
by the country's Constitution, laws, and all policies, to
ensure the normal progression of religious activities, to
protect the monastery's legal rights and interests, to
resolutely oppose splittist activities, and to protect the
unification of the motherland.'' \98\ The poster specified the
subordinate relationship of the monastery to external, non-
religious agencies: ``The monastery should accept the
administrative management of local village-level organizations,
and accept the leadership of the Buddhist association.'' A 1991
set of TAR measures regulating religious affairs described a
Buddhist association as ``a bridge for the Party and government
to unite and educate personages from religious circles and the
believing masses.'' \99\
TAR Measures Extend Party Control Over Tibetan Buddhism
In January 2007, Zhang Qingli wrote in an issue of Seeking
Truth that the TAR government must implement the national-level
Regulation on Religious Affairs (RRA)\100\ in a manner that
will ``ensure that the Constitution and laws enter the temple
doors, the management system, and the minds of monks and
nuns.'' \101\ There are more than 1,700 monasteries and
nunneries in the TAR, and approximately 46,000 monks and nuns,
according to official state-run media reports.\102\ As Zhang
called on the Party to achieve comprehensive implementation of
its policy on ``freedom of religious
belief,'' which he said aims to ``actively guide religion to
adapt to socialist society,'' \103\ the TAR Implementing
Measures for the Regulation on Religious Affairs (TAR 2006
Measures) were coming into effect.\104\
The TAR 2006 Measures state a general formula for the
relationship between the state and religion: ``All levels of
the people's government shall actively guide religious
organizations, venues for
religious activities, and religious personnel in a love of the
country and of religion, in protecting the country and
benefiting the people, in uniting and moving forward, and in
guiding the mutual adaptation of religion and socialism.'' The
national-level RRA, effective in March 2005, does not contain
such language.\105\
The TAR 2006 Measures impose stricter and more detailed
controls on TAR religious activity,\106\ which is mainly
Tibetan Buddhist,\107\ than the RRA or the 1991 TAR Temporary
Measures on the Management of Religious Affairs\108\ (TAR 1991
Measures) that the TAR 2006 Measures replaced. The most
forward-looking area of state intrusion into Tibetan Buddhist
freedom of religion, and the most consequential to the future
of the religion, is in the process of identifying, seating, and
providing religious training to
reincarnated Tibetan Buddhist lamas. The TAR 2006 measures
provide five articles on the matter,\109\ compared to one each
in the RRA\110\ and the TAR 1991 Measures.\111\ The RRA article
includes language that seeks to compel Tibetan compliance with
a 17th century Qing dynasty edict directing Tibetan religious
leaders to identify reincarnations by drawing a name from an
urn in the presence of an imperial Chinese official.\112\ The
TAR 1991 Measures ban the involvement in the identification
process of ``foreign forces,'' a
reference to the traditional role of the Dalai Lama and other
high-ranking Tibetan lamas now living in exile. [See the
following subsection for information on national measures
regulating Tibetan
reincarnation issued in July 2007 and effective in September.]
The TAR 2006 Measures establish additional Party and
government controls,\113\ beyond those contained in the RRA or
the TAR 1991 Measures, over the identification and education of
reincarnated Tibetan Buddhist lamas in the TAR.
No organization or individual in the TAR may
attempt to identify a reincarnated lama without
approval from the TAR government.\114\
No one from the TAR may travel to another
province to attempt to identify a reincarnated lama (or
vice versa) until the TAR Buddhist association
(``religious organization'') consults with the
provincial-level Buddhist association in the other
province (or vice versa), and the TAR Buddhist
association reports the matter to the TAR
government.\115\
DMCs must plan and implement milestones in the
institutional advancement of reincarnated lamas, such
as the formal seating of a reincarnated lama at a
monastery, formally ordaining a reincarnated lama as a
monk, and promoting a reincarnated lama to advanced
levels of Buddhist study. Local government must
supervise such events.\116\
DMCs must draft, and reincarnated lamas must
submit to, ``practical measures for strengthening the
development, education, and management'' of
reincarnated lamas.\117\
DMCs must report to the local government the
names of a reincarnated lama's religious and cultural
teacher(s) after the DMC has proposed candidates to the
local Buddhist association and the association
consents.\118\
The TAR 2006 Measures impose new requirements\119\ that
eliminate freedom of movement for monks and nuns in the TAR if
they travel for the purpose of teaching, studying, or
practicing religion.\120\ Monks and nuns living in TAR
monasteries and nunneries may not travel anywhere in the TAR
for the purpose of practicing religion\121\ without carrying
with them their ``religious personnel identification [card]''
and an unspecified form of ``proof'' provided by the county-
level government where they live, and reporting ``for the
record'' to the county-level government where they wish to
practice religion.\122\ Monks and nuns in the TAR may not
travel to another TAR prefecture to study religion without
first obtaining approval from the local government in the
destination prefecture, and reporting the approval to the local
government in the prefecture of origin.\123\ The TAR 1991
Measures, in comparison, stated no requirements of monks and
nuns who traveled between monasteries and nunneries in the TAR
in order to practice or study religion. The TAR 1991 Measures
contained one article addressing travel that required monks and
nuns traveling from the TAR to another province for advanced
Buddhist study or teaching Buddhism (or vice versa) to first
obtain consent from the governments of the TAR and the other
province.\124\
Buddhist associations, monasteries, nunneries, monks, and
nuns that violate provisions of the TAR 2006 Measures can face
criminal or civil penalties under Chinese law, or expulsion
from a monastery or nunnery.\125\ Authorities can, for example,
initiate punishments for ``illegal activities such as those
that harm national security or public security,'' a catch-all
phrase that can include expressions of religious devotion to
the Dalai Lama, or for sharing, viewing, and listening to any
type of recorded media about him. The TAR 2006 Measures
introduce an explicit ban on disseminating and viewing ``books,
pictures, and materials that disrupt ethnic unity or endanger
national security,'' and a ban on requests by ``religious
followers'' for monks and nuns ``to recite from banned
religious texts.'' \126\ Another punitive measure with
potentially broad impact empowers local governments to order a
``religious organization'' to ``disqualify'' as a registered
religious professional a monk or nun who, in ``serious
circumstances,'' does not fulfill regulatory requirements on
travel.\127\
A local government's use of regulations on religious
affairs to
enforce the demolition in May 2007 of a large, nearly completed
statue of a ninth century Buddhist teacher, Padmasambhava (Guru
Rinpoche),\128\ at the oldest Tibetan monastery, Samye,\129\
shows how the law can control religious practice, rather than
protect religious freedom. Photographs available in one report
appear to show that the 30-foot tall statue was constructed
within the monastery's grounds.\130\ People's Armed Police
(PAP) arrived at Samye, located in Shannan (Lhoka) prefecture
in the TAR, and demolished the statue during the Buddhist holy
month of Saga Dawa, according to an unofficial report.\131\
Private donors from Guangzhou city in Guangdong province paid
800,000 yuan to have the statue constructed.\132\
The RRA and TAR 2006 Measures introduce provisions
prohibiting any group or individual not part of a state-
authorized religious organization or venue for religious
activity from building such a statue.\133\ Both sets of
provisions mandate the demolition of a religious statue that is
erected without official approval, but the TAR 2006 Measures
only address the matter if the statue is built outside
monastery grounds.\134\ Because the statue was built on Samye's
grounds by individuals who were not authorized members of an
officially recognized religious institution, the local
government could have invoked RRA provisions as a legal pretext
to destroy the statue. In fact, an official Chinese media
report provided a rough translation of a Samye DMC notice
confirming the role of the RRA as well as the Law on Protection
of Cultural Relics.\135\ The State Administration for Religious
Affairs, the Ministry of Construction, and the China National
Tourism Administration jointly issued a ``Notice of Illegally
Building [an] Open[-air] Statue of Buddha,'' according to the
DMC notice.\136\ Lodi Gyari, the Dalai Lama's Special Envoy,
decried the statue's destruction, saying, ``This divisive and
sacrilegious act by an atheist state has caused deep anguish
among Tibetans in the region.'' \137\
The total number of monasteries, nunneries, monks, and nuns
that the TAR government tolerates could come under increased
pressure, based on Zhang Qingli's statements in Seeking Truth.
He described a ``bottom line'' for the number of locations for
``religious activity'' (monasteries and nunneries) and of
``full time religious persons'' (monks and nuns), and warned
that, ``[H]aving satisfied the needs of the believer masses,
there can be no indiscriminate building and recruiting.'' \138\
Zhang's comment could presage government action to assert more
aggressively its role in limiting the size of the Tibetan
Buddhist monastic establishment--which the TAR Party newspaper
said in 1996 exceeded the number that the Party planned in
1986, and created a negative impact on Tibetan social and
economic development.\139\
National Government Measures Take Control of Tibetan Buddhist
Reincarnation
The State Administration for Religious Affairs (SARA)
issued a set of national measures in July 2007 (effective on
September 1) that, if fully implemented, will establish
government control over the process of identifying and training
reincarnated Tibetan Buddhist teachers throughout China.\140\
Unlike the TAR 2006 Measures, the ``Measures on the Management
of the Reincarnation of Living Buddhas in Tibetan Buddhism''
\141\ (MMR) apply to the significant concentrations of Tibetan
Buddhists in Qinghai, Gansu, Sichuan, and Yunnan provinces, as
well as to the TAR. The total number of Tibetan Buddhist
monasteries and nunneries in the TAR and the four provinces
probably exceeds 3,300, based on official information, and the
total number of monks and nuns may exceed 115,000 by several
thousand.\142\ Each monastery hopes to have a reincarnated
teacher in residence, although some monasteries have none and
other monasteries have more than one. Based on official but
incomplete information, the Commission estimates that the total
number of reincarnated teachers in the Tibetan areas of China
probably exceeds 1,000, and could reach or surpass 2,000.\143\
The MMR will ``institutionalize management on reincarnation
of living Buddhas,'' according to a SARA statement,\144\ and
strengthen the subordination of traditional Tibetan Buddhist
practices to Party policy: ``The selection of reincarnates must
preserve national unity and solidarity of all ethnic groups and
the selection process cannot be influenced by any group or
individual from outside the country.'' The MMR could result in
greater isolation between Tibetan Buddhist communities living
in China and important Tibetan Buddhist teachers living in
exile, especially the Dalai Lama, by using each instance of
recognizing a reincarnated Tibetan teacher as an opportunity
for the government to reinforce the barrier between Tibetan
Buddhism in China and Tibetan Buddhists living in other
countries.
As elderly Tibetan Buddhist reincarnated teachers pass
away, government enforcement of the MMR may prevent Tibetans
from searching for and recognizing subsequent reincarnations,
resulting in a decreasing number of reincarnated teachers.
Article 3 requires that ``[a] majority of local religious
believers and the monastery [Democratic Management Committee]
must request the reincarnation'' before the search for a
reincarnation may take place.\145\ DMCs are less likely to
pursue a request for a reincarnation if local officials oppose
it, and local authorities are well-positioned to hinder or
discourage a majority of ``religious believers'' from
expressing their desire to maintain a reincarnation in a local
monastery. Article 4 disallows the recognition and seating of
reincarnations within urban districts established by higher-
level governments if the urban district government issues a
local decree banning further reincarnations.\146\ The Chengguan
district under Lhasa municipality is currently the only urban
district within the Tibetan autonomous areas of China.\147\ If
the Chengguan district government issues such a decree, it
could affect two of the largest and most influential Tibetan
monasteries, Drepung and Sera,\148\ and the two oldest Tibetan
Buddhist temples, Jokhang and Ramoche.
The MMR establishes unprecedented government control\149\
over the principal stages of identifying and educating
reincarnated Tibetan teachers, including:
Determining whether or not a reincarnated
teacher who passes away may be reincarnated, and
whether a monastery is entitled to seek to have a
reincarnated teacher in residence.\150\
Conducting a search for a reincarnation.\151\
Recognizing a reincarnation and obtaining
government approval of the recognition.\152\
Seating (installing) a reincarnation in a
monastery.\153\
Providing education and religious training for
a reincarnation.\154\
The measures provide for punishment of individuals or
offices that are responsible for a failure to comply with the
measures, or that conduct activities pertaining to
reincarnation without government authorization.\155\
In August 2007, senior officials, including Liu Yandong,
Head of the Communist Party United Front Work Department
(UFWD), and Ye Xiaowen, Director of SARA, convened a national
seminar in Beijing on ``Tibetan Buddhism work,'' and stressed
that in the matter of seating Tibetan Buddhist reincarnated
teachers, ``our own come first,'' according to a Singtao Daily
report.\156\ The phrase underscores Party resolve to ensure
that successful candidates for positions as reincarnated
teachers will from now on fulfill the Party's political
expectations, and that the Dalai Lama and other senior Tibetan
Buddhist teachers living in exile will have no influence on the
process.\157\ Officials at the seminar emphasized that the MMR
must be implemented fully throughout the Tibetan areas of China
and in the Inner Mongolia Autonomous Region, where many Mongols
believe in Tibetan Buddhism. At an August 17-18 UFWD work forum
in Lhasa, Director of the TAR UFWD, Lobsang Gyaltsen (Luosang
Jiangcun), relayed the national guidelines to regional
officials, and Zhang Yijiong, Deputy Secretary of the TAR Party
Committee, called on attendees to ``thoroughly implement the
policy of the [Party] on religious work'' and ``energetically
unite the religious and patriotic forces.'' \158\
Number of Imprisoned Monks and Nuns Declines as Repression of Religion
Increases
Tibetan Buddhist monks and nuns constituted 11 of the 13
known political detentions of Tibetans by Chinese authorities
in 2006, compared to 21 of the 24 known such detentions in
2005, and 8 of the 15 such detentions in 2004,\159\ based on
data available in the Commission's Political Prisoner Database
(PPD)\160\ as of September 2007. The increased proportion of
monks and nuns that make up the total number of known political
detentions evident in 2005 has not changed in 2006, and is
likely to reflect monastic resentment against the intensified
patriotic education campaign. The total number of known
detentions of monks and nuns, however, has declined in
comparison with 2005. The unusual shift of political detention
of monks and nuns away from Sichuan province in 2005,\161\ when
none were reported, was short lived. Nine of the 13 known
political detentions of Tibetan monks and nuns in 2006 took
place in Sichuan province; the rest occurred in the TAR.
The extent to which the apparent decline in political
detention of monks and nuns in 2006 reflects actual
circumstances, or incomplete information, or both, is unknown.
It is possible that the Party and government's increased
repression of Tibetan Buddhism since 2005 (especially of
aspects of the religion that involve the Dalai Lama) has
produced the result that the government desires: a more subdued
monastic community. Fewer monks and nuns may be risking
behavior that could result in punishments such as imprisonment
or expulsion from a monastery or nunnery (a prospect that may
increase under the TAR 2006 Measures). At the same time, it is
likely that the actual number of detained monks and nuns is
higher than PPD data indicates.\162\ Reports of detention of
unnamed persons,\163\ or of persons who are reported as
missing,\164\ are not listed along with reports of detention
that include detailed information. Irrespective of the actual
number of recent detentions, the high proportion of monks and
nuns among them, and recent statements by monks and nuns
describing their frustration with government management of
Tibetan Buddhism,\165\ suggests that the level of monastic
resentment against Chinese religious policies remains high.
Repressive policies can result in a decline of behavior that
triggers punishment, but a high level of frustration suggests
that the potential for a resurgence of political protest
exists.
Tibetan monks and nuns make up about 64 of the 100 known
currently detained or imprisoned Tibetan political prisoners,
according to PPD data current in September 2007. Twenty-eight
of the monks and nuns were detained or imprisoned in the TAR,
24 in Sichuan province, 7 in Qinghai province, and 4 in Gansu
province. Based on data available for 42 currently imprisoned
Tibetan monks and nuns, their average sentence length is 10
years and 4 months.
No Progress on Access to (or Freedom for) the Panchen Lama
The Chinese government continues to refuse to allow access
by an international organization, such as the International Red
Cross, to Gedun Choekyi Nyima, the boy the Dalai Lama
recognized as the Panchen Lama in May 1995.\166\ Chinese
officials continue to hold him in incommunicado custody along
with his parents at an unknown location. Gedun Choekyi Nyima
turned 18 years of age in April 2007, and in May he completed
his 12th year in custody. Chinese officials claim that Gedun
Choekyi Nyima is leading a ``normal, happy life and receiving a
good cultural education.'' \167\ After the Dalai Lama announced
his recognition of Gedun Choekyi Nyima, Chinese officials took
the then six-year-old boy and his parents into custody. The
State Council declared the Dalai Lama's announcement ``illegal
and invalid'' \168\ and installed Gyaltsen Norbu,\169\ whose
appointment continues to stir widespread resentment among
Tibetans. Chinese authorities may punish or imprison Tibetans
who possess photographs of Gedun Choekyi Nyima or
information about him.
Incidents of Repression of Freedom of Religion in Tibetan Secular
Society
Chinese government repression of freedom of religion is not
limited to the Tibetan Buddhist monastic community, and
adversely affects secular Tibetan society. Most Tibetans are
not monks or nuns--they are farmers, herders, workers, traders,
business operators, professionals, students, teachers, and
government staff. In the TAR about 98 percent of Tibetans live
in secular society.\170\ Official repression of Tibetan
Buddhist activity by secular Tibetans principally targets the
Dalai Lama, Tibetan religious devotion to him, and aspects of
Tibetan Buddhism closely linked to him, especially certain
ceremonies and observances associated with the Gelug tradition
of Tibetan Buddhism.\171\ Tibetans who follow other traditions
of Tibetan Buddhism, such as the Kargyu, Sakya, and Nyingma
traditions, especially in Tibetan areas outside the TAR, may
experience less interference from authorities.\172\
Chinese authorities routinely seek to prevent Tibetans from
participating in religious observances that they suspect
signify Tibetan devotion to the Dalai Lama. For example, the
Lhasa Evening News published a Lhasa Party Committee notice on
December 12, 2006, that forbids government employees, workers
in government-run businesses, and school students to
participate in a Tibetan Buddhist observance, Gaden Ngachoe,
that would take place three days later.\173\ The notice warned,
``Everyone must conscientiously respect the government and
Party committee's demand.'' Tibetans traditionally light butter
lamps to mark the occasion.
The Lhasa Party Committee in May 2007 forbade Tibetan
school children in some Lhasa neighborhoods from participating
in
Tibetan Buddhism's most holy day, Saga Dawa,\174\ or wearing
``amulet threads'' (blessing strings) received at Buddhist
sites.\175\ Beginning in the late 1980s, when Tibetans staged a
series of public
protests against Chinese policies, the Lhasa government has
attempted to prevent Tibetans employed in the government sector
and Tibetan students from participating in Saga Dawa.\176\ The
prohibition continued in 2006, when the government threatened
to fire government employees who defied the ban, according to a
U.S. Department of State report.\177\
Tibetans living in the Lhasa area, as well as throughout
the TAR and in Tibetan autonomous areas of Qinghai, Gansu, and
Sichuan provinces, openly celebrated the Dalai Lama's July 6
birthday in 2007,\178\ despite government characterization of
such celebration as ``illegal'' \179\ and effective enforcement
of a ban in previous years.\180\ Some Tibetans reportedly
believed that the turnout in 2007 represented Tibetan
celebration of the Dalai Lama's receipt of the Congressional
Gold Medal, scheduled for October 2007.\181\
TIBETAN CULTURE UNDER CHINESE DEVELOPMENT POLICY AND PRACTICE
Commission Reports and Recommendations: Tibetan Culture in a Developing
West
CECC Annual Reports issued since 2002 document that Chinese
government development policy and implementation, especially of
the Great Western Development (GWD) program,\182\ increase
pressure on the Tibetan language and culture, and erode the
Tibetan people's ability to preserve their heritage and self-
identity.
The 2002 Annual Report observed that GWD ``has
the most profound implications for western China of any
official policy formulation to emerge in the post-Deng
era.'' \183\ The report identified the Qinghai-Tibet
railway, then in its second year of construction,\184\
as the project causing the greatest alarm for Tibetans.
An expert told the Commission, ``The new railway to
Tibet will only intensify existing migratory trends,
exacerbate ethnic income disparities, and further
marginalize Tibetans in traditional economic
pursuits.'' \185\
In 2003, the Annual Report stated, ``The
majority of Tibetans, who live in rural areas, benefit
little from central government investment in the
Tibetan economy. Most of this investment supports
large-scale construction and government-run enterprises
in which Han control is predominant.'' \186\ Tibetans
must have access to significantly improved educational
resources if they are to adapt successfully to their
new environment, and if their culture is to survive,
then the Tibetan language must play an important role
in their education, the report said.\187\
In 2004, the Annual Report noted that
``existing policy initiatives are gaining momentum,
especially the Great Western
Development program, formulated to accelerate economic
development in China's western provinces and speed
their integration into the political and social
mainstream.'' \188\ The report warned that government
policies ``promote strict adherence to a national
identity defined in Beijing [and] discourage Tibetan
aspirations to maintain their distinctive culture and
religion.'' \189\
The 2005 Annual Report showed that Chinese
government statistics on educational achievement
demonstrate that few Tibetans are prepared to compete
for employment and business opportunities in the Han-
dominated economic environment developing around
them.\190\ Urban Tibetans reached senior middle school
at 19 times the rate of rural Tibetans, the report
said, but rural Tibetans are the largest and least
prepared category of Tibetans competing for
opportunities created by government economic
development programs.\191\
The release of the 2006 Annual Report followed
the start of operation of the Qinghai-Tibet railway.
The report noted ``increasing Tibetan concerns about
the railway's potential effects on the Tibetan culture
and environment,'' \192\ and explained why Chinese law,
government and Party policies, and official statements
increase Tibetan concerns that programs such as GWD and
projects such as the Qinghai-Tibet railway will lead to
large increases in Han migration.\193\
The Commission responded to the concerns and needs of
Tibetans in China by recommending increased funding for U.S.
NGOs to develop programs that ``improve the health, education,
and
economic conditions of ethnic Tibetans.'' A Commission
recommendation in 2003 stressed that such programs should
``create direct, sustainable benefits for Tibetans without
encouraging an influx of non-Tibetans into these areas.'' \194\
GWD Era Laws and Regulations Tend To Pressure, Not Protect, Tibetan
Culture
Changes in Chinese laws and regulations that address ethnic
autonomy issues and that have been enacted during the period of
GWD tend to decrease the protection of ethnic minority language
and culture. The stated purpose of GWD is to ``accelerate
economic and social development of the western region and the
minority nationality regions in particular.'' \195\ TAR Party
Secretary Zhang Qingli asserted that as the result of such
policies, ``Tibet is in [the] best period of development and
stability in its history.'' \196\ President and Party General
Secretary Hu Jintao, who served as the TAR Party Secretary from
1988-1992,\197\ affirmed support for GWD and the importance of
``the issue of coordinated regional development'' when he met
TAR delegates to the NPC in March 2007.\198\ Laws and
regulations such as the following have resulted in a trend of
increasing cultural, linguistic, and economic pressure on
ethnic minorities.
The National People's Congress (NPC) amended the 1984
Regional Ethnic Autonomy Law (REAL)\199\ in 2001, bringing the
law into conformity with more recent trends in Party policy.
Amendments added extensive language guiding issues that include
economic development, natural resource exploitation,
infrastructure construction, financial and fiscal management,
recruiting cadres, professionals, and workers from other parts
of China to ``Go West,'' establishing cooperative development
projects between other parts of China and the GWD area, and
improving the education system for ethnic minorities.\200\ [See
Section II--Ethnic Minority Rights for more information on the
REAL.]
The amended REAL increased state support for ethnic
minority education but lessened the state's commitment to the
constitutionally protected task of preserving and using ethnic
minority languages.\201\ The 1984 REAL required the state to
set up ``institutes of nationalities and, . . . nationality
oriented classes and preparatory classes which only enroll
students from minority nationalities.'' \202\ The amended REAL
requires such institutes to ``enroll only or mostly students
from ethnic minorities,'' \203\ potentially reducing the level
of use of ethnic languages within such institutes. Another
result is that ethnic minorities must compete academically with
Han who enroll in ethnic minority institutes, and compete with
them for jobs after graduation.\204\ The 1984 REAL authorized
the state to introduce for ethnic minorities ``[p]referred
enrollment and preferred assignment of jobs,'' \205\ a form of
assistance that can help Tibetans and other minorities to
compete for employment in an emerging market economy that
attracts an increasing number of Han who have better
educations.\206\ The amended REAL, however, removed the
language that authorized the preferential treatment for ethnic
minorities.\207\
The Provisions of the State Council for Implementing the
REAL,\208\ issued in May 2005, promote a key GWD strategy:\209\
encouraging professionals, experts, and workers in China's
populous areas to ``Go West'' along with their families to
``develop and pioneer in ethnic autonomous areas.'' \210\ The
amended REAL itself provides the basis for establishing
implementing provisions that provide incentives for population
movement into autonomous areas where Tibetans and other ethnic
groups live by authorizing local autonomous governments to
provide ``preferential treatment and encouragement'' to
``specialized personnel joining in the various kinds of
construction in these areas.'' \211\ Minister Li Dezhu of the
State Ethnic Affairs Commission (SEAC) warned in 2000 that
implementation of the GWD and the resulting westward population
flow could cause ``possible trouble'' in ethnic relations. He
wrote in Seeking Truth that ``some changes in the proportions
of the nationalities'' would take place and that ``conflicts
and clashes'' could occur between ethnic groups.\212\
The State Council Legislative Affairs Office is reportedly
preparing a draft law for submission to the NPC that ``aims to
create a favorable legal environment and support for a smooth
implementation'' of GWD, according to a March 2006 statement by
Wang Jinxiang, the Vice Minister of the National Development
and Reform Commission and the Deputy Director of the State
Council Office of the Leading Group for Western Region
Development.\213\ Wang said that the Legislative Affairs Office
was working on the 14th version of the draft and that he
believed completion of the draft was ``imminent.'' No updated
information is available about the progress of the bill.
Protection for the Tibetan language has also decreased
under autonomy regulations enacted during the GWD period. In
2002, the TAR People's Congress revised the 1987 TAR
Regulations on the Study, Use, and Development of the Tibetan
Language,\214\ ending the precedence of the Tibetan language by
authorizing the use of ``either or both'' of Mandarin and
Tibetan languages in most areas of government work.\215\ A 1998
government White Paper stated, ``Guaranteeing the study and use
of the Tibetan language is an important aspect of safeguarding
the Tibetan people's right to autonomy and exercising their
right to participate in the administration of state and local
affairs.'' \216\ The then-current regulation ``clearly
specifies that both Tibetan and Chinese should be used in the
Tibet Autonomous Region, with precedence given to the Tibetan
language,'' according to the White Paper.
Qinghai-Tibet Railway Carries 1.5 Million Passengers Into the TAR in
First Year
The Qinghai-Tibet railway, officially designated a key GWD
project,\217\ ``transported 1.5 million passengers into Tibet''
during its first year of operation (ending on June 30, 2007),
according to a July report.\218\ The government issued no
public reports of major incidents or accidents linked to the
railway's operation during the year. Advocacy organizations
have expressed publicly\219\ what Tibetans in China say
privately, that the railway will facilitate a surge of non-
Tibetans into Tibetan autonomous areas, altering the
demographic and economic structure of the region, and further
increasing pressure on Tibetan culture and on Tibetans as they
compete for jobs and other economic benefits.\220\ Jampa
Phuntsog (Xiangba Pingcuo), Chairman of the TAR government,
claimed in June 2007 that such a threat does not exist, and
that Tibetans in the TAR would not face assimilation into
Chinese culture (``Han culture'').\221\
State-run media reports about the Qinghai-Tibet railway
generally apply the terms ``passenger'' and ``tourist''
interchangeably to persons traveling to the TAR, and provide
little information about how many passengers arrive in the TAR
for purposes other than tourism. For example, the July report
of ``1.5 million passengers'' describes them as ``nearly half
of the total tourist arrivals in the region.'' \222\ At that
rate of arrival, nearly 4,100 passengers arrived in the TAR
each day. That figure accords closely with a May 2006 statement
by the China Tibet Tourism Bureau (before railway operations
began) that the railway would ``transport an additional 4,000
tourists to Tibet each day.'' \223\ The July report's portrayal
of the 1.5 million passengers as ``tourists'' making up nearly
half the total tourist arrivals is also consistent with
information in other official reports: there were a total of
3.6 million tourist arrivals in 2006 and the first six months
of 2007.\224\
The Commission is aware of one official Chinese media
report that less than half of the Lhasa-bound Qinghai-Tibet
railway passengers were tourists during the height of the
tourist season after the railway began service. Midway into
September 2006, the railway's third month of operation, Jin
Shixun, the Director of the TAR Committee of Development and
Reform, provided information about the occupational categories
of passengers--60 percent were business persons, students,
transient workers, traders, and individuals visiting relatives;
40 percent were tourists.\225\ Jin's remark was based on
270,000 passengers over a period of approximately 75 days, or
about 3,600 passengers per day. If a similar proportion
prevailed throughout the remainder of the first year of
operation, then approximately 900,000 of the 1.5 million
passengers could have been non-tourists, and hundreds of
thousands of them could have been non-Tibetan business persons,
workers, and traders who intended to remain for a period in the
TAR. An October 2005 report by China's state-run media also
acknowledged that the railway will ``attract tourists, traders,
and ethnic Chinese settlers'' to the region.\226\
A Tibetan resident of Lhasa told a radio call-in show in
July 2007 that ``Tibetans in Lhasa have been overwhelmed by the
frightful explosion of the Chinese population in the city.''
\227\ The caller said that ``wherever you go, you get the
impression of overcrowding.'' Tibetans ``[witness] Chinese
tourists becoming permanent residents,'' she said, and reported
that ``Chinese migrants were moving fast into formerly Tibetan
neighborhoods and businesses.'' Another Tibetan caller from
Lhasa said ``there is deep skepticism about the aim and whose
purpose [the railway] is serving,'' and asserted that ``the
Tibetans are certainly not the direct beneficiaries.'' The
first caller acknowledged that Tibetan traders are doing more
business, but she said those benefits are ``insignificant if
you take the whole picture of Chinese benefits in terms of
business and employment into account.'' \228\ An NGO reported
in early August that Chinese fleeing flooded areas of the
country were ``pouring into Tibet'' on the Qinghai-Tibet
railway, and that thousands of unemployed migrants roamed Lhasa
looking for work.\229\ The ``unprecedented movement of Chinese
migrants to Lhasa,'' which started in July, ``has put pressure
on the local Tibetans and their day-to-day livelihood,''
according to the report.
Inadequate information provided by the Chinese government
about passengers traveling on the Qinghai-Tibet railway hampers
objective assessment of the railway's alleged role in
accelerating the influx of non-Tibetan residents into the
region. Existing examples of the establishment of rail links to
remote regions in China indicate that significant changes to
the proportions of ethnic groups occur over time. Rail links
were built into what is now the Inner Mongolia Autonomous
Region (IMAR) before the PRC was established;\230\ a railway
reached Urumqi, the capital of the Xinjiang Uighur Autonomous
Region (XUAR), in 1962; the railway arrived in Kashgar, in the
western XUAR, in 1999.\231\ Based on official 2000 census data,
the ratio of Han to Mongol in the IMAR is 4.6 Han to 1 Mongol.
In the XUAR the ratio of Han to Uighur is 0.9 Han to 1 Uighur.
The ratio of Han to Tibetans in the TAR stood at 0.07 Han to 1
Tibetan in 2000, according to census data.\232\ Tibetans are
concerned that the Qinghai-Tibet railway will facilitate
changes in Tibetan areas of China similar to those in the IMAR
and XUAR.
Rebuilding the Tibetan Countryside: Allegations of Forced Settlement,
Re-housing
Another Party-led program linked to GWD and the anti-Dalai
Lama campaign aims to end a way of life that is iconic among
Tibetans and that has survived for centuries: nomadic
herding.\233\ A government program gathered momentum last year
that aims to build a ``beautiful, new socialist countryside''
\234\ and requires nomads to give up their traditional
lifestyle and grazing lands to live in fixed settlements, or
find other work. Similar programs affecting herders in Qinghai,
Gansu, Sichuan, and Yunnan provinces are underway.\235\ A TAR
government program underway is moving Tibetan farmers into new
housing in reorganized communities. TAR Party Secretary Zhang
Qingli said that such steps would result in a ``harmonious
society.'' \236\ Party General Secretary Hu Jintao\237\ advised
TAR delegates, including Zhang, attending the NPC in March 2007
that ``maintaining social harmony and stability is the
premise'' for economic and social development in the TAR.\238\
Zhang Qingli said in the January 2007 issue of Seeking
Truth that the Party's determination to restructure Tibetan
farming and grazing communities is not only to promote economic
development, but also to counteract the Dalai Lama's
influence.\239\ Zhang said that to do so is essential for
``continuing to carry out major development of west China''
(e.g., GWD), and pointed out that 80 percent of the TAR
population are farmers and herders. ``[Farmers and herders
`living and working in peace and contentment'] is the
fundamental condition for us in holding the initiative in the
struggle against the Dalai clique,'' Zhang said.\240\ He listed
Party objectives including to construct permanent housing for
nomadic herders, improve farmers' housing, relocate farmers'
housing to achieve poverty relief, and ensure that 80 percent
of TAR farmers and herders are in ``safe and suitable'' housing
within five years. Zhang called on the Party to support
measures to ``actively organize'' Tibetan farmers and herders
to move to towns or urban areas to find employment, set up
businesses, or seek training in other skills.\241\
The Chinese government has implemented policies since 2000
(the year that GWD was implemented) to confiscate herders'
land, erect fencing, and resettle herders, and has intensified
the policies in some areas since 2003, Human Rights Watch (HRW)
reported in June 2007.\242\ Guolou (Golog) and Yushu Tibetan
Autonomous Prefectures (TAPs) in Qinghai province are the areas
most severely affected by implementation.\243\ The report
acknowledges that China faces environmental crises, and that
Chinese officials have explained that removing herds from
traditional pastures will benefit the environment,\244\ but the
report asserts that ``there are grounds for disputing both who
is responsible for those crises and the consequent actions
taken by the government in the name of protection in Tibetan
areas.'' \245\
The resettlement program has subjected herders to
compulsory or forced resettlement, compulsory livestock
reduction, bans on grazing, compulsory change of land use, and
evictions to make way for public works schemes, the HRW report
asserts.\246\ Chinese
authorities failed to consult adequately with the affected
herders, provide them with adequate compensation, or allow them
adequate options for complaint, thereby failing to fulfill
requirements under the Chinese Constitution, according to the
report.\247\ ``Claims of nonpayment are endemic, and there are
also allegations of corruption and discrimination in the
compensation process,'' according to HRW.\248\
The number of Tibetans affected by forced resettlement is
unknown but it ``clearly runs into the tens, if not hundreds,
of thousands,'' according to the HRW report.\249\ The
Commission's 2006 Annual Report reported that TAR authorities
relocated 48,000 herders and settled them in fixed communities
in the period 2001-2004,\250\ that a government program in
Qinghai province to settle herders (including Tibetans) placed
about 10,000 families in fixed communities by 2005,\251\ and
that a Gansu province program started in the late 1990s to
settle herders in Tibetan autonomous areas settled 7,000
families by 2004 and is expected to be complete in 2009.\252\
TAR government Chairman Jampa Phuntsog stated in June 2007
that ``no forced resettlement has been done'' in the TAR, and
he provided details about some cases of relocation.\253\ He
acknowledged that the TAR government had ``displaced some 7,000
people who lived at the source of the Yangtze River'' in
Changdu (Chamdo) prefecture and resettled them in Linzhi
(Kongpo) prefecture. He claimed that the government had
``respected the will of the people'' in doing so. In addition,
the TAR was seeking to move dozens of herding families out of
the Hol Xil Natural Reserve, but not all of them had agreed to
leave. ``We are still trying to persuade them to move, and they
will only be relocated when they agree to,'' Jampa Phuntsog
said.\254\
The TAR government launched a program in 2006, concurrent
with the region's 11th Five-Year Plan, to move Tibetan farmers
and herders into new housing.\255\ In the first year of
operation, the program moved 56,000 households with 290,000
members into new houses.\256\ Zhang Qingli personally led the
effort, according to state-run media, and when the program
concludes in 2010, it will have moved 220,000 families into new
homes.\257\ Based on an average household size of 5.2 persons
(suggested by the preceding data), the total number of Tibetans
moved into new housing by 2010 could be approximately 1.14
million--more than half of the total number of Tibetan rural
residents in the TAR at the time of the 2000 census.\258\
Reports by advocacy groups and official Chinese media
organizations on whether or not Tibetan participation in the
housing program is voluntary, and the consequences of the
financial burden on Tibetan farmers and herders, differ
sharply. Zhang Qingli said in March 2007 that county- and
prefecture-level governments offer each household a subsidy to
defray 10,000-25,000 yuan (US$1,300-US$3,300) of the estimated
60,000 yuan (US$8,000) cost of a house, with Tibetan
householders paying the rest.\259\ Construction is on a
``strictly volunteer basis,'' Zhang claimed.\260\ HRW reported
in December 2006 that the program requires villagers,
``particularly those who live next to main roads,'' to rebuild
their homes ``in accordance with strict official specifications
within two to three years.'' \261\ The government does not
subsidize the cost of the house, according to HRW, but lends
Tibetans between 20 and 25 percent of the cost to
householders.\262\
Tibetan farmers and nomads, whose 2,435 yuan average per
capita income in 2006 places them among China's poorest
citizens,\263\ generally do not have savings or other capital
resources equal to several years of income, so they face
difficulty in paying for the government-mandated housing.
``Nearly all must therefore supplement these funds with
considerable bank loans,'' HRW said. Even relatively wealthy
households have been ``forced into debt,'' and borrowers who
default on loans forfeit the right to occupy the house,
according to the report.\264\ None of the Tibetans interviewed
by HRW reported that they had a right to challenge the program
or refuse to participate in it. Some Tibetans described
incidents in which local authorities demolished Tibetan homes
after residents refused to participate in the program, or who
said that they could not participate because they could not
borrow enough money to pay for a new home. According to a June
2007 foreign media report, the relocated villages are ``cookie-
cutter'' in style, and even though farmers did not appear to be
happy, they were ``reluctant to complain.'' \265\
Local government officials in a village in Dingri county,
located in Rikaze (Shigatse) prefecture in the TAR, threatened
to punish households that failed to build a new home, according
to a May 2007 Tibetan Centre for Human Rights and Democracy
(TCHRD) report.\266\ Officials told the villagers that they
should improve their village before the 2008 Olympics so that
it will be more attractive to tourists. The government offered
to contribute 10,000 yuan toward houses that must cost a
minimum of 20,000 yuan, but villagers in the area are so poor
that only 4 of the 34 households built houses.\267\ Three of
the four households had to secure a bank loan in order to match
the government's 10,000 yuan contribution. ``The new houses do
not reflect the better living standards of Tibetan people, they
are not happy in the new houses built upon debts, [and] they
are more worried than ever about how to repay the loans to
banks,'' TCHRD's source said.\268\
PUNISHING PEACEFUL TIBETAN EXPRESSION UNDER CHINA'S CONSTITUTION AND
LAW
Commission Reports, China's Record on Tibetan Rights
Commission Annual Reports issued since 2002 document that
the Chinese government applies the Constitution and law in a
manner that restricts and represses the exercise of human
rights by Tibetans, and that uses the law to punish peaceful
expression and action by Tibetans as threats to state security.
The Chinese government, and governments in the TAR and other
provinces where Tibetans live, made no progress in the past
year toward improving the right of Tibetans in China to
exercise their constitutionally guaranteed freedoms of
religion, expression, and assembly. Such restrictions are
inconsistent with the Chinese government's obligations under
international human rights standards.\269\ Instead, Communist
Party political campaigns promote atheism and strengthen
government efforts to discourage Tibetan aspirations to foster
their unique culture and heritage. [See Section II--Freedom of
Religion.]
The 2002 Annual Report observed that the
Chinese government seeks to maintain unity and
stability\270\ by ``constraining Tibetan political,
cultural, educational, and religious life,'' and that
human rights and the rule of law in Tibetan areas of
China are configured to serve government and Party
interests.\271\
In 2003, the Annual Report noted that friction
remains between Tibetan aspirations to maintain their
distinctive culture and religion and Chinese policies
favoring atheism and emphasizing the primacy of
national identity. China represses peaceful expression
that it considers ``splittist,'' or that it deems to be
``detrimental to the security, honor, and interests of
the motherland.'' \272\
The 2004 Annual Report observed that China
represses or punishes peaceful expression by Tibetans
that authorities deem to ``endanger state security''
even if the expression is non-violent and poses no
threat to the state. An official in Beijing told
Commission staff in September 2003, ``There is not a
distinct line between violent and non-violent. . . . A
non-violent action can result in eventual violence.''
The 2005 Annual Report noted the downward
trend in the number of known Tibetan political
prisoners, and suggested, ``Tibetans are avoiding the
risks of direct criticism or protest against Chinese
policies and are turning to education, arts, and
religion for ways to express and protect their culture
and heritage.'' But as incidents of protest declined,
Chinese authorities watched for other signs of Tibetan
resentment or nationalism.
In 2006, the Annual Report provided additional
information on how Tibetans appear to be avoiding the
risks of direct
protest against government policies and turning to
other methods of cultural expression. After the Dalai
Lama told Tibetans in India, ``Neither use, sell, or
buy wild animals, their products or derivatives,''
Tibetans in China staged public events in which they
burned rare furs stripped from traditional Tibetan
garments.\273\
Political Imprisonment of Tibetans: Peaceful Expression and Non-Violent
Action as Threats to State Security
Chinese authorities continue to detain and imprison
Tibetans for peaceful expression and non-violent action,
charging them with crimes such as ``splittism,'' \274\ and
claiming that their behavior ``endangers state security.''
\275\ [See Section II--Rights of Criminal Suspect and
Defendants--Law in Action: Abuses of Criminal Law and
Procedure.] Expression or action that is linked to the Dalai
Lama is especially likely to result in such charges. Chinese
officials have punished Tibetans, such as Jigme Gyatso, a
former monk imprisoned in 1996 who is serving an 18-year
sentence\276\ for printing leaflets, distributing posters, and
later shouting pro-Dalai Lama slogans in prison, and Choeying
Khedrub, a monk serving a life sentence since 2000 for printing
leaflets, for peaceful expressions and non-violent actions that
officials believe could undermine Party rule. Two Tibetans
sentenced along with Choeying Khedrub, monk Yeshe Tenzin and
builder Tsering Lhagon, are serving sentences of 10 and 15
years respectively on the same charges.
Possessing photographs or copies of religious teachings of
the Dalai Lama can result in imprisonment for endangering state
security (by ``inciting splittism'') for up to five years,
especially if a Tibetan carries such material across the
international border into the TAR, an official of the Rikaze
(Shigatse) Prefecture Intermediate People's Court, located in
the TAR, confirmed in 2005.\277\ ``Any document that relates to
Tibetan independence, Dalai Lama photos, or any other documents
or literature containing reactionary themes or subjects are
punishable,'' he said. In February 2007, the Rikaze court
sentenced a Tibetan man, Penpa, to three years' imprisonment
after police searched his home and confiscated audio recordings
of the Dalai Lama conducting a Buddhist teaching in India.\278\
Local authorities became suspicious of Penpa when they learned
that he was saving sheep from the slaughterhouse as a religious
offering dedicated to the Dalai Lama's long life.\279\
Public security officials detained a total of nine Tibetans
in Ganzi (Kardze) Tibetan Autonomous Prefecture (TAP), Sichuan
province, none of whom authorities accused of violent activity,
between March and August 2006, according to reports issued
between June and September.\280\ Officials detained six of the
Tibetans for alleged roles in printing and distributing pro-
independence leaflets in late May: Kayo Doga (a layman in his
late-50s, previously sentenced to three years of reeducation
through labor in 2002 for his role in arranging a prayer
ceremony for the Dalai Lama's long life); Yiga (Kayo Doga's
daughter, a former nun); nuns Sonam Lhamo, Sonam Choezom (or
Sonam Choetso), and Jampa Yangzom (or Jampa Yangtso); and Yiga,
a female middle-school student. According to an unofficial
source, a Ganzi county court issued a notice that all six
detainees, including the minor, Yiwang, would face trial and
that formal arrest had taken place.\281\
In separate incidents reported by unofficial sources
involving the seventh and eighth Ganzi detentions, officials
detained monk Namkha Gyaltsen of Gepheling Monastery in March
2006 for allegedly painting pro-independence slogans on
government buildings (or putting up pro-independence posters),
and monk Lobsang Palden, also of Gepheling, on August 15 after
authorities searched his room and found ``incriminating
documents'' including photos of the Dalai Lama.\282\ Namkha
Gyaltsen allegedly confessed and may face a sentence of seven
to eight years, and officials formally arrested Lobsang Palden
on September 6 on charges of inciting splittism. In the ninth
reported Ganzi detention, public security officials searched
the living quarters of Jinpa, the abbot of Taglung Monastery,
located in Seda (Serthar) county in Ganzi TAP, in
August 2006, according to an unofficial report.\283\ The
officials reportedly found nothing that they considered to be
illegal, but they detained Jinpa nonetheless, possibly in
connection with pro-independence posters that appeared in the
monastery a year earlier.
Public security officials based at Sera Monastery in Lhasa
detained monk Gyaltsen Namdrag in May 2006 on suspicion that he
distributed pro-independence pamphlets, according to an
unofficial report.\284\ The Lhasa Intermediate People's Court
sentenced him in October to five years' imprisonment on charges
of endangering state security (probably ``inciting
splittism''). Gyaltsen Namdrag is reportedly serving his
sentence at Qushui Prison, according to the report.
The Lhasa Intermediate People's Court sentenced tailor
Sonam Gyalpo to 12 years' imprisonment for espionage on June 9,
2006,\285\ following a search of his Lhasa home in August 2005
by state security officials who discovered photos and
videotapes of the Dalai Lama and printed matter, according to
an unofficial report.\286\ Sonam Gyalpo allegedly made contact
with the Tibetan government-in-exile in the 1990s and engaged
in pro-independence activity in the TAR, according to official
Chinese information reported by Dui Hua Dialogue in April
2007.\287\ Sonam Gyalpo was 1 of about 10 Tibetans detained
before the 40th anniversary of the TAR on September 1, 2005,
according to another unofficial report.\288\ He was reportedly
imprisoned twice previously for a total of nearly four years as
punishment for political activity,\289\ and is serving his
current sentence in Qushui Prison.\290\
Official Chinese information confirmed the detention of
Lhasa school teacher Drolma Kyab in March 2005, his conviction
on charges of espionage and illegally crossing the border, and
his sentence of 10 years and 6 months' imprisonment after he
authored a manuscript touching on sensitive political
subjects.\291\ The unpublished book contained 57 chapters on
subjects such as ``democracy, sovereignty of Tibet, Tibet under
[C]ommunism, colonialism, [and] religion,'' according to an
unofficial report.\292\ Drolma Kyab had started a second work
that focused on Tibetan geography and that touched on topics
including the number and location of military camps in
``Chinese occupied Tibet.'' \293\ He smuggled a letter
appealing to the United Nations for help out of Qushui
Prison,\294\ where he is serving his sentence.\295\ Drolma Kyab
wrote in the letter, ``They think that what I wrote about
nature and geography was also connected to Tibetan
independence. . . . [T]his is the main reason of my conviction,
but according to Chinese law, the book alone would not justify
such a sentence. So they announced that I am guilty of the
crime of espionage.'' \296\
The Gannan Intermediate People's Court in Gansu province
sentenced nun Choekyi Drolma to three years' imprisonment in
December 2005 for ``inciting splittism,'' according to official
Chinese information that became available in November
2006.\297\ She is serving her sentence in the Gansu Women's
Prison. Choekyi Drolma was among five Tibetan monks and nuns
detained in 2005 in Xiahe (Sangchu), in Gannan (Kanlho) Tibetan
Autonomous Prefecture (TAP) in Gansu. Public security officials
detained her along with nuns Tamdrin Tsomo and Yonten Drolma of
Gedun Tengyeling Nunnery, and monks Dargyal Gyatso and Jamyang
Samdrub of Labrang Tashikhyil Monastery, on May 22, 2005, on
suspicion that they circulated and displayed letter-sized
posters that were critical of the Chinese government. The
official information mentioned only Choekyi Drolma, but it is
likely that the court tried and sentenced the five monks and
nuns together since they allegedly acted together. Dargyal
Gyatso and Tamdrin Tsomo are believed to be serving 3-year
sentences; Jamyang Samdrub and Yonten Drolma are believed to
have been released after completing 18-month sentences.\298\
Jamphel Gyatso and Tashi Gyaltsen, two of a group of five
monks of Dragkar Traldzong Monastery reportedly detained in
Qinghai province in January 2005 and sentenced in February for
publishing a poem in the monastery newsletter, are reportedly
serving their three-year sentences at a brick kiln near Xining,
the capital of Qinghai.\299\ The other three monks, Lobsang
Dargyal, Tsesum Samten, and Tsultrim Phelgyal, completed two-
year and six-month sentences in July 2007 and are presumed to
be released. Security officials considered the poem to be
politically sensitive and ordered the monks to serve terms of
reeducation through labor.
No new developments were reported in the past year in the
cases of prisoners Bangri Chogtrul or Tenzin Deleg,
reincarnated Tibetan lamas convicted in separate cases. Both
men had contact with the Dalai Lama in India in the years prior
to their detentions. Bangri Chogtrul (Jigme Tenzin Nyima), who
lived as a householder in Lhasa and managed a children's home
along with his wife, was convicted of inciting splittism and
sentenced to life imprisonment in a closed court in Lhasa in
September 2000.\300\ The Lhasa Intermediate People's Court
commuted his sentence to 19 years of fixed term imprisonment in
July 2003, and reduced the sentence by 1 year in November
2005.\301\ Tenzin Deleg (A'an Zhaxi) was convicted in a closed
court in Sichuan province in November 2002 of conspiring to
cause explosions and inciting splittism.\302\ Authorities claim
that the case involves state secrets and refuse to disclose
details of evidence that establishes a direct link between
Tenzin Deleg and the alleged criminal acts. The Commission and
Human Rights Watch have published reports on the case, which
has stirred international controversy for its procedural
violations and lack of transparency.\303\ The provincial high
court commuted Tenzin Deleg's reprieved death sentence to life
imprisonment in January 2005. Chinese officials acknowledge
that he suffers from coronary heart disease and high blood
pressure.\304\
In an incident linked to a protest against Tenzin Deleg's
imprisonment, public security officials in Litang county, Ganzi
TAP, detained Tibetan nomad Ronggyal Adrag (Runggye Adak) on
August 1, 2007, at a horse-racing festival after he climbed
onto a stage where officials were scheduled to speak and,
according to one report,\305\ shouted slogans calling for the
Dalai Lama's return to Tibet, the release of Gedun Choekyi
Nyima (the Panchen Lama identified by the Dalai Lama), and
Tibetan independence. According to other reports,\306\ he
called for the Dalai Lama's return, freedom of religion, and
the releases of the Panchen Lama and Tenzin Deleg. Ronggyal
Adrag's statements may have been provoked by a petition drive
conducted by Chinese officials who visited local monasteries in
the weeks before the festival and told monks to sign a petition
stating that they do not want the Dalai Lama to return to
Tibet.\307\ In an unusually swift and public response, China's
state-run media acknowledged on August 3 that police detained
Ronggyal Adrag for ``inciting separation of the
nationalities,'' and that more than 200 Tibetans had gathered
the same day outside the detention center to call for his
release.\308\ All of the Tibetans left the area of the
detention center by the following day, according to the
official report. A week later, on August 8, People's Armed
Police forces used tear gas and stun grenades to disperse
Tibetans who gathered peacefully near the horse-racing grounds
to call for Ronggyal Adrag's release, according to an
unofficial report.\309\ Authorities detained three of Ronggyal
Adrag's nephews on August 21, including monk Adrug Lopoe of
Lithang Monastery, whom police deemed to be a ``splittist''
influence behind the public demands for Ronggyal Adrag's
release.\310\ Officials released Adrug Lopoe's two brothers
soon after they took him into detention.\311\
Another incident of Tibetan expression of the wish for the
Dalai Lama to return to Tibet resulted in the detention of
seven 14- and 15-year old middle school students in Xiahe
county, Gannan TAP, according to an NGO report.\312\ On or
about September 7, 2007, local public security officials
detained about 40 students from a
village middle school after some of the students allegedly
wrote slogans on walls calling for the Dalai Lama's return and
Tibetan freedom.\313\ Police released all but seven of the
students within 48 hours, and transferred seven boys to the
Xiahe county seat, where authorities refused to provide any
information to the children's families or confirm that they
were in police custody.\314\ The report named five of the boys:
Chopa Kyab (age 14), Drolma Kyab (14), Tsekhu (14), and two 15-
year-olds each named Lhamo Tseten.\315\ Police reportedly beat
one of the seven boys upon detention, resulting in profuse
bleeding, and refused to allow the boy's family to take him for
medical care.
Chinese authorities carried out 13 known detentions of
Tibetans in 2006, a decrease compared to the 24 such detentions
in 2005 and 15 such detentions in 2004, according to
information available in the Commission's Political Prisoner
Database (PPD) as of September 2007. Of the known political
detentions in 2006, nine took place in Sichuan province and
four in the TAR. The PPD listed 100 known cases of current
Tibetan political detention or imprisonment, a figure that is
likely to be lower than the actual number of Tibetan political
prisoners. Reports of Tibetan political imprisonment often do
not reach monitoring groups until at least one or two years
after the detentions occur. Forty-nine of the Tibetans are
believed to be detained or imprisoned in the TAR, 30 in Sichuan
province, 9 in Qinghai province, and 9 in Gansu province. The
location where Chinese authorities are holding the Panchen Lama
and his parents is unknown. Based on sentence information
available for 61 of the current prisoners, the average sentence
length is 11 years and 7 months.
The number of known cases of current Tibetan political
detention or imprisonment reported in the current Annual Report
is approximately half the number that the Commission reported
in the 2002 Annual Report.\316\ The downward trend in the
number of known Tibetan political prisoners may reflect
incomplete information, as well as fewer Tibetans risking
imprisonment as punishment for peaceful expression and non-
violent action in opposition to Chinese policies. Instead,
Tibetans may be turning to other methods of expressing their
culture and self-identity.
Monk Ngawang Phuljung of Drepung Monastery, the longest
serving Tibetan who remains imprisoned for counterrevolutionary
crimes, received a 6-month reduction to his 19-year sentence in
September 2005 and is due for release from Qushui Prison on
October 18, 2007, according to an October 2006 report based on
official Chinese information.\317\ After his detention in April
1989, the Lhasa Intermediate People's Court sentenced him along
with nine other Drepung monks at a public rally in November.
Ngawang Phuljung's crimes included ``forming a
counterrevolutionary organization,'' ``spreading
counterrevolutionary propaganda,'' ``passing
information to the enemy,'' and ``crossing the border illegally
and spying,'' according to a 1994 UN Working Group on Arbitrary
Detention (UNWGAD) report that quoted an official Chinese
response about the case.\318\ The UNWGAD report declared
Ngawang Phuljung's detention arbitrary, and stated that the
alleged espionage and betrayal of state secrets ``consisted in
fact in the exposure of cases of violations of human rights
including their disclosure abroad.''
V. Developments in Hong Kong
The United States supports a stable, autonomous Hong Kong
under the ``one country, two systems'' formula articulated in
the Sino-U.K. Joint Declaration and the Basic Law.\1\ The
people of Hong Kong enjoy the benefits of an independent
judiciary\2\ and an open society in which the freedoms of
religion, speech, and assembly are respected. The Commission
strongly supports the provisions of the Basic Law that provide
for the election of the Chief Executive and the entire
Legislative Council through universal suffrage, and highlights
the importance of the central government's obligation to give
Hong Kong the ``high degree of autonomy'' promised in the Basic
Law.
CONSTITUTIONAL REFORM AND STEPS TO UNIVERSAL SUFFRAGE
The National People's Congress Standing Committee (NPCSC)
issued a decision in April 2004 prohibiting the people of Hong
Kong Special Administrative Region (HKSAR) from electing both
the Chief Executive in 2007 and the members of the Legislative
Council (LegCo) in 2008 through universal suffrage.\3\
Universal suffrage is described in Articles 45 and 68 of the
Basic Law as the ``ultimate aim.'' \4\ Currently, the Chief
Executive is selected by the 800-member Election Committee
chosen from Hong Kong's 28 functional constituencies, and only
half of the 60 legislators in the LegCo are chosen by direct
election.
In June 2005, following the resignation of former Chief
Executive Tung Chee-hwa, then-acting Chief Executive Donald
Tsang was elected unopposed as Chief Executive. In December
2006, Civic Party legislator Alan Leong successfully competed
in the Chief Executive Election Committee (CEEC) selection
process, and ran against Tsang for Chief Executive in March
2007. Tsang and Leong conducted an open and vigorous election
campaign. Two televised debates were widely viewed, and
attracted broad public and media interest. Tsang won a large
majority of the CEEC votes and will serve a five-year term
ending in 2012. Under Hong Kong law, he cannot run for another
term. Tsang has vowed publicly to ``resolve'' the universal
suffrage issue during his term in office.\5\
On July 1 2007, Hong Kong's Constitutional Affairs Bureau
was renamed the Constitutional and Mainland Affairs Bureau ``to
reflect more clearly the Bureau's key function of coordinating
and promoting closer ties and cooperation with the Mainland.''
\6\ The Bureau is responsible ``for overseeing the full and
faithful implementation of the Basic Law,'' and ensuring that
local elections are held fairly, openly, and honestly in
accordance with the relevant provisions of the Basic Law.\7\
The Bureau in 2007 focused on public discussion of the models,
roadmap, and timetable for implementing universal suffrage for
the Chief Executive and the LegCo. During the second half of
2007, the Bureau also has focused on further development of
Hong Kong's political appointment system. As of July 1, 2007,
the Bureau also assumed responsibility for matters relating to
human rights and access to information.\8\
The Hong Kong Government issued a Green Paper on
Constitutional Development (``the Green Paper'') in July 2007
to consult the public on plans for implementing universal
suffrage.\9\ The Green Paper outline plans to develop a
``mainstream'' model of reform by the end of 2007.\10\ The
document offers a number of scenarios and timetables for
universal suffrage including 2012 and 2016.\11\ The issuance of
the Green Paper for public comment reflects an attempt to forge
a basis for consensus on implementation of universal suffrage
and the future development of the democratic process in Hong
Kong.\12\ The period of public consultation ends on October 10,
2007. After summarizing public comments, the HKSAR Government
will submit a report to Beijing on the views gathered.
The Basic Law provides for an independent judiciary. Under
the Basic Law, the courts may interpret those provisions of the
Basic Law that address matters within the limits of the SAR's
autonomy. The courts also interpret provisions of the Basic Law
that touch on Chinese central government responsibilities, or
on the relationship between the central authorities and the
SAR. However, before making final judgments on these matters,
which are not subject to appeal, the courts must seek an
interpretation of the relevant provisions from the NPCSC.\13\
Under the Basic Law, the National People's Congress (NPC)
has the sole power to amend the Basic Law. Placing an amendment
of the Basic Law on the NPC's agenda requires the approval of
the Chief Executive, two-thirds of the LegCo, and two thirds of
Hong Kong's NPC delegates.
The Basic Law requires the courts to follow the NPCSC's
interpretation of Basic Law provisions, although judgments
previously rendered are not affected. As the final interpreter
of the Basic Law, the NPCSC also has the power to initiate
interpretations of the Basic Law, as in April 2004 when it
ruled out universal suffrage in Hong Kong's 2007 and 2008
elections.\14\ There is concern that this process, which
circumvents the Court of Final Appeal's power of final
adjudication, could be used to limit the independence of the
judiciary.\15\
VI. Endotes
Voted to adopt: Representatives Levin, Kaptur, Udall,
Honda, Walz, Smith, Manzullo, Royce, and Pitts; Senators Dorgan,
Baucus, Levin, Feinstein, Brown, Hagel, Smith, and Martinez; Under
Secretary Dobriansky, Assistant Secretary Hill, and Acting Deputy
Secretary Radzely.
Voted not to adopt: Senator Brownback.
Notes to Section I--Executive Summary and Recommendations 2006-2007
\1\ Jacques deLisle, ``China's Quest for Resources and Influence,''
Orbis reposted to AmericanDiplomacy.org, 15 February 07; Qi Zhou,
``Human Rights Conflicts: China and the United States,'' Human Rights
Quarterly, Volume 27, Number 1 (February 2005), 105:124; For an example
of Chinese thinkers' assertion of a strong notion of sovereignty in the
United Nations as a rejection of U.S. human rights ``interference'' in
China, see ``Are Human Rights Higher than Sovereignty?'' People's Daily
Online, 17 March 06.
\2\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, International Religious Freedom Report 2007, China (includes
Tibet, Hong Kong, and Macau), 14 September 07.
\3\ The Commission treats as a political prisoner an individual
detained or imprisoned for exercising his or her human rights under
international law, such as peaceful assembly, freedom of religion,
freedom of association, free expression, including the freedom to
advocate peaceful social or political change, and to criticize
government policy or government officials. (This list is illustrative,
not exhaustive.) In most cases, prisoners in the PPD were detained or
imprisoned for attempting to exercise rights guaranteed to them by
China's law and Constitution, or by international law, or both.
\4\ The Tibet Information Network (TIN) ceased operations in
September 2005.
Notes to Section II--Rights of Criminal Suspects and Defendants
\1\ See 22 U.S.C. '6912(a)(5).
\2\ See 22 U.S.C. '6912(b).
\3\ The UN Working Group on Arbitrary Detention (UNWGAD) visited
China from September 18-30, 2004, and the UN Special Rapporteur on
Torture visited from November 20 to December 2, 2005. For findings from
those visits, see UN Working Group on Arbitrary Detention, Report of
the Working Group on Arbitrary Detention, Mission to China, Addendum,
29 December 04 [hereinafter UNWGAD Report]; Manfred Nowak, Report of
the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Mission to China, Advance Edited Version, 10
March 06 [hereinafter Nowak Report].
\4\ These include the International Covenant on Economic, Social
and Cultural Rights; the Convention on the Elimination of All Forms of
Racial Discrimination; the Convention on the Elimination of All Forms
of Discrimination Against Women; the Convention on the Rights of the
Child; and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. PRC Aide Memoire, reprinted in
United Nations (Online), 13 April 06.
\5\ Ibid.
\6\ See Wang Xinyou, ``International Association of Anti-Corruption
Authorities Formally Established; Jia Chunwang Elected First Chair''
[Guoji Fantanju Lianhehui zhengshi chengli; Jia Chunwang dangxuan
shouren zhuxi], Procuratorial Daily (Online), 26 October 06; World
Health Organization (Online), ``Dr. Margaret Chan to be WHO's next
Director-General,'' 9 November 06.
\7\ See, e.g., Universal Declaration of Human Rights, adopted and
proclaimed by General Assembly resolution 217 A (III) of 10 December
48, arts. 5, 9-11, 14 [hereinafter UDHR]; International Covenant on
Civil and Political Rights, adopted by General Assembly resolution
2200A (XXI) of 16 December 66, entry into force 23 March 76, arts. 7,
9, 14 [hereinafter ICCPR].
\8\ UN Commissioner for Human Rights, Fact Sheet #26, the Working
Group on Arbitrary Detention. Examples of the first category include
individuals who are kept in detention after the completion of their
prison sentences or despite an amnesty law applicable to them, or in
violation of domestic law or relevant international instruments. The
rights and freedoms protected under the second category include those
in Articles 7, 10, 13, 14, 18, 19, and 21 of the UDHR, and in Articles
12, 18, 19, 21, 22, 25, 26, and 27 of the ICCPR.
\9\ ICCPR, arts. 9(1) and 9(2).
\10\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, art. 2.
\11\ Nowak Report, para. 60.
\12\ The 61st session of the UN Commission on Human Rights was held
in Geneva from March 14 to April 22, 2005.
\13\ See A Global Review of Human Rights: Examining the State
Department's 2004 Annual Report, Hearing of the Subcommittee on Africa,
Global Human Rights, and International Operations, House Committee on
International Relations, 17 March 05, Oral Statement of Michael Kozak,
Assistant Secretary of State for Democracy, Human Rights, and Labor, US
Department of State, 40. Kozak, then-Acting Assistant Secretary of
State for the Bureau of Democracy, Human Rights and Labor, noted in his
testimony that the Administration's decision on whether it would
introduce a resolution condemning China's human rights practices in any
given year depended on what concrete steps the Chinese government had
taken to improve human rights that year.
\14\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2006, China
(includes Tibet, Hong Kong, and Macau), 6 March 07, sec. 1.e. As of
September 2007, the Commission's Political Prisoner Database contained
only 87 records of prisoners still believed to be in detention or
serving sentences connected to counterrevolutionary activity.
\15\ See Dui Hua Foundation (Online), ``Long-Serving June 4
Prisoner Set for Release,'' 29 August 07.
\16\ See Jim Yardley, ``Man Freed After Years in Jail for Mao
Insult,'' New York Times (Online), 23 February 06; Dui Hua Dialogue,
``Sentence Reduction for Yu Dongyue,'' Summer 05, 6.
\17\ See Dui Hua Dialogue, ``Official Responses Reveal Many
Sentence Adjustments,'' Fall 06, 6.
\18\ See UN Commission on Human Rights (Online), Opinions adopted
by the Working Group on Arbitrary Detention, Decision No. 8/2000, 9
November 00, 70. In the opinion that it adopted, the UNWGAD declared
Jigme Gyatso's detention to be arbitrary and in contravention of
articles 19 and 20 of the UDHR and articles 19 and 22 of the UDHR.
\19\ State Council Information Office, White Paper on Human Rights
in China, PRC Central Government (Online), November 91.
\20\ The Commission's Political Prisoner Database contained
approximately 4,060 individual case records of political and religious
imprisonment in China, as of September 2007. See supra, ``Political
Prisoner Database,'' and accompanying notes. Thousands of political
prisoners are detained in China's reeducation through labor system. See
infra, ``Detention Outside the Criminal Process,'' and accompanying
notes.
\21\ Crimes that ``disturb public order'' are listed in Part 2,
Chapter 6, Section 1, of the Criminal Law, and include ``assault[ing] a
State organ, making it impossible for the State organ to conduct its
work'' (Article 290), gathering people to block traffic (Article 291),
and the use of heretical sects to undermine implementation of the law
(Article 300), among others. Although the 1997 revision of the Criminal
Law eliminated all counterrevolutionary crimes, it added a new category
of crimes ``endangering state security.'' Crimes that ``endanger state
security'' are listed in Part 2, Chapter 1, and include ``inciting
splittism'' or ``splittism'' (Article 103), ``inciting subversion'' or
``subversion'' (Article 105), and ``illegally providing state secrets
to entities outside of China'' (Article 111), among others.
\22\ See, e.g., CECC, 2003 Annual Report, 2 October 03, 15-16;
CECC, 2004 Annual Report, 5 October 04, 13-14; CECC, 2005 Annual
Report, 11 October 05, 25-26; CECC, 2006 Annual Report, 20 September
06, 47-48.
\23\ UNWGAD Report, para. 23.
\24\ Nowak Report, para. 35.
\25\ Ibid., para. 34.
\26\ UDHR, art. 10 and 11(1); ICCPR, arts. 14(1) and 14(2).
\27\ PRC Criminal Procedure Law [hereinafter CPL], enacted 1
January 79, amended 17 March 96, art. 64 (establishing an exception to
this requirement ``in circumstances where such notification would
hinder the investigation or there is no way of notifying them''). The
maximum period of detention prior to approval of a formal arrest is 37
days after taking into account extensions permitted by law. Ibid., art.
69.
\28\ See CECC, 2003 Annual Report, 18; CECC, 2004 Annual Report,
16; CECC, 2005 Annual Report, 25; CECC, 2006 Annual Report, 47.
\29\ Human Rights in China (Online), ``News Wrap-up: Crackdowns on
Petitioners Continue,'' 9 March 07; ``Cat-and-mouse game begins for
petitioners,'' South China Morning Post (Online), 2 March 07.
\30\ ``Ministry of Public Security Announces the Status of
Preventing Major Public Security Disasters and Accidents, Ensuring
Public Security Supervision'' [Gonganbu tongbao yufang zhongda zhi'an
zaihai shigu, baozhang gonggong anquan ducha qingkuang], China News Net
(Online), 2 March 06.
\31\ Human Rights Watch (Online), ``Largest `Clean-up' of
Protestors and Rights Activists in Years,'' 14 March 07.
\32\ See Human Rights Watch (Online), ``China: Beijing Petitioners'
Village Faces Demolition,'' 6 September 07; Mark Magnier, ``Beijing
evicting disgruntled citizens from `petitioners village,''' Los Angeles
Times (Online), 18 September 07.
\33\ Human Rights Watch, ``China: Beijing Petitioners' Village
Faces Demolition.''
\34\ The U.S. State Department characterized house arrest as a
``nonjudicial punishment and control measure'' that can sometimes
include ``complete isolation in one's own home or another location
under lock and guard.'' U.S. Department of State, Country Reports on
Human Rights Practices--2006, China, sec. 1.d.
\35\ Human Rights Watch, ``Largest `Clean-up' of Protestors and
Rights Activists in Years.''
\36\ ``Population Planning Official Confirms Abuses in Linyi City,
Shandong Province,'' CECC China Human Rights and Rule of Law Update,
October 2005, 2; Philip P. Pan, ``Rural Activist Seized in Beijing,''
Washington Post (Online), 7 September 05. For a summary and the
ultimate outcome of Chen's case, see CECC, 2006 Annual Report, 49.
\37\ Chinese Human Rights Defenders (Online), ``Activist Chen
Guangcheng's House Arrest Exceeds Legal Limits, with Domestic Remedies
Ineffective, CRD Submits Case to UN,'' 9 March 06.
\38\ Hu Jia, ``After Serious Negotiations with Yuan Weijing, Police
Are Forced to Formally Release Her From House Arrest'' [Zai Yuan
Weijing yanzheng jiaoshe xia jingfang beipo zhengshi jiechu dui ta de
``jianshijuzhu''], reprinted in Chinese Human Rights Defenders
(Online), 29 May 07.
\39\ Hu Jia, ``Yuan Weijing Barred From Meeting U.S. Embassy Human
Rights Officer'' [Yuan Weijing huijian Meiguo shiguan renquan guanyuan
shouzu], reprinted in Chinese Human Rights Defenders (Online), 6 July
07; Maureen Fan, ``Wife of Chinese Activist Detained at Beijing
Airport,'' Washington Post (Online), 25 August 07.
\40\ Wu Yihuo and Hong Jun, ``Too Few Administrative Law
Enforcement Cases Transferred to Judicial Organs--Relevant Anhui
Research Reveals Information: Three Major Factors Influence Effective
Links Between Administrative Law Enforcement and Criminal Law
Enforcement'' [Xingzheng zhifa anjian yisong sifa jiguan taishao, Anhui
youguan yanjiuban touchu xinxi: san da yinsu yingxiang xingzheng zhifa
yu xingshi zhifa youxiao xianjie], Procuratorial Daily (Online), 31
January 05; Protection of Human Rights in the Context of Punishment of
Minor Crimes in China, Staff Roundtable of the Congressional-Executive
Commission on China, 26 July 02, Testimony of Dr. Veron Mei-ying Hung,
Associate, China Program, Carnegie Endowment for International Peace.
\41\ Various analysts estimate that between 2 percent and 10
percent of those sentenced to reeducation through labor are political
detainees. Veron Mei-Ying Hung, ``Reassessing Reeducation Through
Labor,'' 2 China Rights Forum 35 (2003); Randall Peerenboom, ``Out of
the Frying Pan and Into the Fire,'' 98 Northwestern University Law
Review 991, 1000-01 and accompanying notes (2004); Jim Yardley, ``Issue
in China: Many in Jails Without Trial,'' New York Times (Online), 9 May
05.
\42\ PRC Administrative Punishment Law, enacted 17 March 96, art.
8(6).
\43\ For more information about the passage and effect of the
Public Security Administration Punishment Law, see CECC, 2006 Annual
Report, 51-52.
\44\ PRC Public Security Administration Punishment Law, enacted 28
August 05, art. 27(2).
\45\ According to attorney Li Baiguang, at least 60 people were
attending a worship service at a house church in Bukou district,
Wendeng city, on June 11, 2006, when 50 public security officials from
several different precincts and departments arrived. These authorities
blocked the exits and ordered worshippers into police vehicles. Thirty-
one of the worshipers were driven to the Bukou police station for
interrogation, and all but Tian Yinghua, Wang Qiu, and Jiang Rong were
released following interrogation. Li noted that officials from the
Wendeng Religious Affairs Office had been to the house church in April
2006, and had told worshipers there that any religious gathering that
exceeded 30 people or included non-family members was an ``illegal
gathering.'' See Li Baiguang, ``Shandong Wendeng: Threatening to
Confiscate House Where Christians Gathered'' [Shandong Wendeng: weixie
yao moshou Jiditu jihui de fangzi], reprinted in China Aid Association
(Online), 27 July 06; China Aid Association (Online), ``House Church
Christians Take Legal Action, File Lawsuit Against Local Public
Security Bureau for Illegal [Administrative] Detention'' [Shandong
Wendeng jiating jiaohui Jidutu caiqu falu xingdong, qisu dangdi gongan
jiguan feifa jujin], 25 October 06.
\46\ According to an application for administrative reconsideration
filed with the Wendeng city government by Li on June 30, 2006, the
Wendeng Public Security Bureau's decision to place Tian, Wang, and
Jiang in administrative detention illegally interfered with their
constitutionally and legally protected right to freedom of religious
belief. On September 28, the government rejected this application. On
October 12, Li proceeded to file with the Wendeng Intermediate People's
Court an administrative complaint that set forth arguments similar to
the ones in his earlier application. See Application for Administrative
Reconsideration Filed by Li Baiguang with the People's Government of
Wendeng City, Shandong Province, on Behalf of Tian Yinghua, Wang Qiu,
and Jiang Rong [Xingzheng fuyi shenqingshu], 30 June 06, reprinted in
China Aid Association (Online), 27 July 06; Administrative Complaint
Filed by Li Baiguang with the People's Court of Wendeng City, Shandong
Province, on Behalf of Tian Yinghua [Xingzheng qisu zhuang], 12 October
06, reprinted in Boxun, 26 October 06.
\47\ China Aid Association (Online), ``Xinjiang Arrests Another
Female Christian Preacher; Shandong Christians File Administrative
Lawsuit Against Public Security Agency'' [Xinjiang you daibu yi ming nu
jidu tu chuandao ren; Shandong jidu tu dui gongan jiguan tiqi xingzheng
susong], 15 November 06.
\48\ Trial Measures on Reeducation Through Labor [Laodong jiaoyang
shixing banfa], issued 21 January 82, arts. 13, 58(10); Provisions on
Public Security Agencies' Handling of Reeducation Through Labor Cases
[Gongan jiguan banli laodong jiaoyang anjian guiding], issued 12 April
02, art. 44.
\49\ See Trial Measures on Reeducation Through Labor, art. 10;
Provisions on Public Security Agencies' Handling of Reeducation Through
Labor Cases, art. 9; These crimes are not serious enough to warrant
punishment under the Criminal Law, but are too serious to fall under
the PSAPL. See Protection of Human Rights in the Context of Punishment
of Minor Crimes in China, Testimony of Dr. Veron Mei-ying Hung.
\50\ A recent China Daily article notes that the original purpose
of the reeducation through labor system was to ``punish dissent.'' Wu
Jiao, ``New law to abolish laojiao system,'' China Daily (Online), 1
March 07.
\51\ Gao Yifei, ``Why NPC Delegates Propose Reforming the
Reeducation Through Labor System'' [Renmin daibiao weihe tiyi gaige
laojiao zhidu], Boxun (Online), 29 April 06.
\52\ Nowak Report, para. 33; Bureau of Democracy, Human Rights, and
Labor, U.S. Department of State, Country Reports on Human Rights
Practices--2005, China (includes Tibet, Hong Kong, and Macau), sec.
1.d.
\53\ See PRC Criminal Law, ch. 3, sec. 1-3.
\54\ Wu, ``New law to abolish laojiao system.''
\55\ UNWGAD Report, paras. 56, 73. Individuals can appeal under the
ALL for a reduction in, or suspension of, a RTL sentence, but these
appeals are rarely successful. U.S. Department of State, Country
Reports on Human Rights Practices--2005, China, sec. 1.d; Hung,
``Reassessing Reeducation Through Labor,'' 37-38.
\56\ See Protection of Human Rights in the Context of Punishment of
Minor Crimes in China, Testimony of Dr. Veron Mei-ying Hung
(``Unfortunately, the courts' role in reviewing the legality of
administrative sanctions such as [RTL] has been limited by aggrieved
parties' fear of suing administrative organs and limited access to
lawyers as well as administrative organs' interference with the
process.'')
\57\ See After the Detention and Death of Sun Zhigang, Staff
Roundtable of the Congressional-Executive Commission on China, 27
October 03, Testimony of Dr. James D. Seymour, Senior Research Scholar,
Weatherhead East Asian Institute, Columbia University; Protection of
Human Rights in the Context of Punishment of Minor Crimes in China,
Testimony of Dr. Veron Mei-ying Hung; Peerenboom, ``Out of the Frying
Pan and into the Fire,'' 999.
\58\ See U.S. Department of State, Country Reports on Human Rights
Practices--2006, China, sec. 1.d. This number exceeds Professor James
Seymour's estimate of 400,000 individuals held in RTL centers 20 years
ago. After the Detention and Death of Sun Zhigang, Testimony of Dr.
James D. Seymour.
\59\ Freedom House (Online), 2005 China Country Report. In its
December 2004 report, the UNWGAD found:
``The operation of the laws governing decisionmaking on placement
in a [reeducation] through [labor] camp is, however, highly
problematic. From reliable sources, including interviews with persons
affected, it is clear that in the overwhelming majority of cases, a
decision on placement in a [reeducation] center is not taken within a
formal procedure provided by law. The commission vested with power to
take this decision in practice never or seldom meets, the person
affected does not appear before it and is not heard, no public and
adversarial procedure is conducted, no formal and reasoned decision on
placement is taken (or issued for the person affected). Thus, the
decisionmaking process completely lacks transparency. In addition,
recourse against decisions are [sic] often considered after the term in
a center has been served.'' UNWGAD Report, para. 58.
\60\ Under Chinese law, punishments that involve a restriction on
personal liberty may only be established by national law. PRC
Legislation Law, enacted 15 March 00, art. 8(v); PRC Administrative
Punishment Law, arts. 9, 10.
\61\ CPL, art. 12.
\62\ PRC Constitution, art. 37.
\63\ Nowak Report, para. 63; State Council Decision on the Question
of Reeducation Through Labor [Guowuyuan guanyu laodong jiaoyang wenti
de jueding], issued 3 Aug 57, para. 2; ``Last year's rate of resettling
those released from prison or reeducation through labor near 90
percent'' [Xingshi jiejiao renyuan qunian anzhilujin jiucheng], China
Legal Publicity (Online), 3 March 06; Yardley, ``Issue in China: Many
in Jails Without Trial.''
\64\ Nowak Report, para. 62.
\65\ Ibid., para. 64. Article 10(3) of the ICCPR provides that,
``The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social
rehabilitation.'' In response to characterization of forced reeducation
as a form of inhuman or degrading treatment, Chinese authorities have
maintained that RTL helps transition detainees back into society.
\66\ UNWGAD Report, paras. 16, 45; ICCPR, arts. 9, 14.
\67\ In 2003, 127 NPC delegates raised the issue of reforming RTL.
At the 2004 NPC plenary session, this number increased to 420, or
approximately one-tenth of the entire NPC body. NPC delegates at the
2005 plenary session submitted six motions to expedite RTL reform, and
in January 2006, the NPCSC added the draft law for reforming RTL to its
legislative plan for 2006. Gao, ``Why NPC Delegates Propose Reforming
the Reeducation Through Labor System.''
\68\ Liao Weihua, ``Reeducation Through Labor System Faces Change;
Law on Correction of Unlawful Acts To Be Formulated'' [Laojiaozhi
mianlin biangai jiang zhiding weifa xingwei jiaozhifa], Beijing News,
reprinted in Xinhua (Online), 2 March 05.
\69\ ``Reeducation Through Labor `Changes Names''' [Laojiao
``gengming''], China Business View (Online), 4 March 05.
\70\ Wu, ``New law to abolish laojiao system'' (summarizing
comments by Wang Gongyi, Deputy Director of the Institute of Justice
Research, a research center affiliated with the Ministry of Justice).
\71\ See Qin Liwen, ``Chongqing Implements `Interim Provisions on
Legal Representation in Reeducation Through Labor Cases''' [Chongqing
shishi ``Lushi daili laodong jiaoyang anjian zanxing guiding''], Legal
Daily, reprinted in Procuratorial Daily (Online), 3 April 07; Irene
Wang, ``Lawyers win role for people facing labour-camp cases,'' South
China Morning Post (Online), 4 April 07.
\72\ See Chongqing Municipal Public Security Bureau, Chongqing
Municipal Justice Bureau Circular on Issuing Interim Provisions on
Legal Representation in Reeducation Through Labor Cases [Chongqing shi
gonganju, Chongqing shi sifaju guanyu yinfa lushi daili laodong
jiaoyang anjian zanxing guiding de tongzhi], issued 16 March 07, arts.
2, 9-10.
\73\ See CPL, arts. 32-41.
\74\ See Wu, ``New law to abolish laojiao system'' (quoting Wang
Gongyi as saying that ``[the Chongqing regulation] allows people to
defend themselves, a right enshrined in the constitution'' and
therefore ``works as a good example for national legislation''). The
article notes that the Chongqing Justice Bureau obtained approval for
its initiative from the Ministry of Justice and the Ministry of Public
Security. In May, Shandong province adopted measures providing for
similar procedural protections in RTL cases. See Trial Measures on
Legal Representation in Reeducation Through Labor Cases [Lushi daili
laodong jiaoyang anjian shixing banfa], issued 25 May 07.
\75\ See Wu, ``New law to abolish laojiao system;'' Hai Tao,
``Chongqing Permits Legal Representation in Reeducation Through Labor
Cases'' [Zhongguo Chongqing yunxu lushi daili laodong jiaoyang an],
Voice of America (Online), 4 April 07.
\76\ See, e.g., CPL, arts. 92 (on interrogation by summons), 64 (on
notification of the reasons for detention), 69 (on approval of arrest),
124-128 (on release pending trial), and 168 (on pronouncement of a
court judgment).
\77\ See Supreme People's Court Notice on Issues Related to
Clearing Cases of Extended Detention [Zuigao renmin fayuan guanyu
qingli chaoqi jiya anjian youguan wenti de tongzhi], issued 29 July 03.
\78\ See Several Provisions from the Supreme People's Procuratorate
Regarding the Prevention and Correction of Extended Detention in
Procuratorial Work [Zuigao renmin jianchayuan guanyu zai jiancha
gongzuo zhong fangzhi he jiuzheng chaoqi jiya de ruogan guiding],
issued 24 September 03, para. 1.
\79\ Supreme People's Court, Supreme People's Procuratorate, and
Ministry of Public Security Notice on the Strict Enforcement of the
Criminal Procedure Law, and on the Conscientious Correction and
Prevention of Extended Detention [Zuigao renmin fayuan, zuigao renmin
jianchayuan, gonganbu guanyu yange zhixing xingshi susongfa, qieshi
jiufang chaoqi jiya de tongzhi], issued 11 November 03.
\80\ ICCPR, arts. 9(3) and 9(4).
\81\ UNWGAD Report, para. 32.
\82\ See State Council Information Office, White Paper on Fifty
Years of Progress in China's Human Rights, PRC Central Government
(Online), June 00.
\83\ See State Council Information Office, White Paper on China's
Progress in Human Rights: 2003, PRC Central Government (Online), March
04.
\84\ See State Council Information Office, White Paper on China's
Progress in Human Rights in 2004, PRC Central Government (Online),
April 05.
\85\ Nowak Report, note 34.
\86\ See Supreme People's Procuratorate Work Report [Zuigao renmin
jianchayuan gongzuo baogao] [hereinafter SPP Work Report], 13 March 07.
\87\ ``Consolidated Work of Correcting Extended Detention Has Been
Effective; 96.2 Percent Drop in New Cases of Extended Detention
Throughout the Nation Last Year''[Jiuzheng chaoqi jiya gonggu gongzuo
qunian xin fasheng chaoqi jiya xiajiang 96.2%], Procuratorial Daily
(Online), 21 May 06; ``Supreme People's Procuratorate Recognizes
Continuing Problem of Extended Detention,'' CECC China Human Rights and
Rule of Law Update, July 2006, 11-12.
\88\ Wu Jing, ``Supreme People's Court President Xiao Yang: Delayed
Justice Is In Fact Injustice'' [Zuigao renmin fayuan yuanzhang Xiao
Yang: chidao de gongzheng jiushi bu gongzheng] Defense Lawyer Net, 3
August 06.
\89\ See National People's Congress Standing Committee Work Report
[Quanguo Renmin Daibiao Dahui changwu weiyuanhui gongzuo baogao], 20
March 07.
\90\ See Han Jinghong, ``Supreme People's Procuratorate: In 2006,
Phenomenon of Extended Detention Fell To Historical Low'' [Zuigaojian
06 nian chaoqi jiya xianxiang yi jiangdao lishi zuididian], China News
Net, reprinted in China Court Net, 14 March 07.
\91\ ``Consolidated Work of Correcting Extended Detention Has Been
Effective; 96.2 Percent Drop in New Cases of Extended Detention
Throughout the Nation Last Year,'' Procuratorial Daily; ``Supreme
People's Procuratorate Recognizes Continuing Problem of Extended
Detention,'' CECC China Human Rights and Rule of Law Update, July 2006,
11-12. In 2003, the SPP passed regulations that prohibit the abuse of
legal procedures to disguise the extended detention of a criminal
suspect. Several Provisions from the Supreme People's Procuratorate
Regarding the Prevention and Correction of Extended Detention in
Procuratorial Work, para. 1.
\92\ In 2003, people's supervisors were given administrative
authority to challenge only procuratorate actions in violation of
Chinese law. See Supreme People's Procuratorate Trial Provisions on
Implementation of the System of People's Supervisors [Guanyu shixing
renmin jianduyuan zhidu de guiding (shixing)], issued 2 September 03,
amended 5 July 04. There are some limitations on who may qualify to
serve as a ``people's supervisor,'' including a minimum age of 23 years
and formal recommendation and appointment upon evaluation. Ibid., arts.
5(3) and 8. As of late 2006, 86% of the nation's procuratorates had
instituted this system. See Nationwide Cases of Extended Detention Fall
to Historical Low [Quanguo chaoqi jiya an jiangdao lishi zuidi],
Beijing Youth Daily, reprinted in Xinhua (Online), 25 April 07.
\93\ Nowak Report, para. 45; UN High Commissioner for Human Rights
(Online), ``Human Rights Council Discusses Reports on Torture,
Arbitrary Detention and Independence of Judges and Lawyers,'' 19
September 06.
\94\ Nowak Report, para. 42.
\95\ Ibid., para. 43. These include police stations, pretrial
detention centers, RTL centers, and ``ankang'' hospitals for the
psychiatric commitment of criminal offenders.
\96\ Ibid., para. 44.
\97\ Ibid., para. 45.
\98\ See also ibid., paras. 53-57.
\99\ For more information about his case, see 2005 Annual Report,
24; CECC, 2006 Annual Report, 57.
\100\ For more information about their case, see ``Detention,
Torture of Anhui Teens Reflect Continuing Criminal Procedure
Violations,'' CECC China Human Rights and Rule of Law Update, October
2006, 2.
\101\ For additional discussion of these topics, see ``Law on the
Books: Judicial Institutions and Challenges,'' infra.
\102\ See Ministry of Foreign Affairs (Online), ``Third Report on
the Implementation of the Convention against Torture and Others,'' 15
November 00. The Chinese government ratified the CAT in 1988. Article
19 of the CAT requires that state parties report to the Committee
against Torture within one year of ratification and once every four
years thereafter. The due date for the Chinese government's latest
report was November 2, 2005.
\103\ ``Foreign Ministry Spokesman Qin Gang's Press Conference on 6
December 2005,'' Ministry of Foreign Affairs (Online), 7 December 05.
\104\ PRC Criminal Law, arts. 247, 248. A ``judicial officer'' is
defined as one who ``exercises the functions of investigation,
prosecution, adjudication, and supervision and control.'' Ibid., art.
94. The Special Rapporteur on Torture notes that the Supreme People's
Procuratorate, which directly handles all investigations of torture,
restricts application of both Articles 247 and 248 so that law
enforcement officials are prohibited from acting, or punishable for
abuses, in just a small number of enumerated cases. Nowak Report, para.
16. New regulations effective July 2006 expand the number of punishable
scenarios from five to eight (in cases of coercing a confession under
torture) and from five to seven (in cases of acquiring evidence through
the use of force and prisoner maltreatment). Supreme People's
Procuratorate Provisions on the Criteria for Filing Dereliction of Duty
and Rights Infringement Criminal Cases, sec. II, paras. 3-5.
\105\ See Provisions on the Procedures for Public Security Agency
Handling of Administrative Cases, [Gongan jiguan banli xingzheng anjian
chengxu guiding], issued 26 August 03, art. 26 (stating that illegally
acquired evidence may not form the basis of a determination in any
administrative case). New provisions went into effect on August 24,
2006, and supercede the 2003 provisions. See Ministry of Public
Security, Provisions on the Procedures for Public Security Agency
Handling of Administrative Cases [Gongan jiguan banli xingzheng anjian
chengxu guiding], issued 29 March 06. The Ministry of Public Security
has explained that the 2006 revision establishes stricter procedural
rules consistent with the new Public Security Administration Punishment
Law. See ``MPS Revises Internal Procedures To Conform With Public
Security Administration Law,'' CECC China Human Rights and Rule of Law
Update, November 2006, 10-11.
\106\ Communist Party of the People's Republic of China,
Regulations on Disciplinary Actions [Zhongguo Gongchandang jilu chufen
tiaoli], issued 18 February 04.
\107\ Provisions on Public Security Use of Continuing Interrogation
[Gongan jiguan shiyong jixu panwen guiding], issued 12 July 04, arts.
1, 18-19.
\108\ Trial Regulations on Disciplinary Sanctions Against
Procuratorate Personnel [Jiancha renyuan jilu chufen tiaoli (shixing)],
issued 1 June 04, art. 47.
\109\ ``Ministry of Justice Issues Prohibitions to Restrain Prison
and RETL Police Abuses,'' CECC China Human Rights and Rule of Law
Update, April 2006, 4.
\110\ See Supreme People's Procuratorate Provisions on the Criteria
for Filing Cases of Dereliction of Duty Infringing Upon Rights [Zuigao
renmin jianchayuan guanyu duzhi qinquan fanzui anjian li'an biaozhun de
guiding], issued 29 December 05, sec. 2. For additional information
about these regulations, see CECC, 2006 Annual Report, 46.
\111\ Human Rights in China, ``Impunity for Torturers Continues
Despite Changes in the Law,'' April 00, 3. See also Professor Peter T.
Burns, ``China and the Convention against Torture,'' The Canada China
Procuratorate Reform Cooperation Programme Lecture Series I, Xi'an and
Lanzhou, China (August 2005) (stating that ``[t]he whole premise of the
Torture Convention is that torturers are not to enjoy impunity'' and
that ``they must be investigated, arrested and tried for their
crimes''). The prohibition against torture is also included in Article
5 of the UDHR.
\112\ See ``Miscarriage of Justice in Chaohu, Anhui: Three
Policemen Investigated for Suspected Involvement in Coercing
Confessions Under Torture'' [Anhui Chaohu yuan'an: san xingjing shexian
xingxun bigong bei li'an zhencha], Xinhua (Online), 12 September 06;
``Anhui: Four Students Falsely Accused of Murder, Detained For 3 Months
During Which They Suffered Extensive Torture in Succession [Anhui: si
xuesheng beiwu sharen jiya 3 ge yue; qijian zaoshou ``chelunzhan''
shoujin zhemo], Southern Metropolitan Daily, reprinted in Southern
Daily (Online), 12 September 06.
\113\ ``Symposium on Illegal Evidence Gathering and Wrongful
Conviction'' Convenes; Procuratorates To Further Standardize Evidence
Gathering Work'' [``Feifa quzheng yu xingshi cuo'an'' yantaohui
zhaokai; jiancha jiguan jinyibu guifan quzheng gongzuo], Legal Daily
(Online), 18 November 06.
\114\ ``Supreme People's Procuratorate Says It Will Strengthen
Implementation of the Existing System To Bring Under Control the Use of
Illegal Evidence Gathering'' [Zuigaojian biaoshi jiang qianghua zhixing
xian you zhidu zhili feifa quzheng], Xinhua (Online), 19 November 06.
\115\ See SPP Work Report, 11 March 02; SPP Work Report, 10 March
04; SPP Work Report, 9 March 05.
\116\ See SPP Work Report, 13 March 07.
\117\ Office of the UN High Commissioner for Human Rights (Online),
Declaration and Reservations to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 April 04.
By contrast, the United States has declared that it recognizes the
competence of the Committee against Torture.
\118\ UN High Commissioner for Human Rights, ``Human Rights Council
Discusses Reports on Torture, Arbitrary Detention and Independece of
Judges and Lawyers.''
\119\ Nowak Report, para. 17.
\120\ Burns, ``China and the Convention against Torture,'' 8.
\121\ Human Rights in China, ``Impunity for Torturers,'' 16.
\122\ See Amnesty International (Online), ``China: Torture/Medical
concern/Prisoner of conscience, Chen Guangcheng (m),'' 21 June 07.
\123\ See Li Qing and Huang Hui, ``Jingdezhen No. 2 Detention
Center Superintendent Prosecuted'' [Jingde zhen di er kanshousuo
zhidaoyuan bei qisu], China Legal Publicity (Online), 4 June 05.
\124\ See ``No Tolerance For Further Aggression By Prison Bosses''
[Bu rong laotou yuba zai xiaozhang], Chinese People's Political
Consultative Conference (Online), 13 September 04.
\125\ See Ya Wei, ``Critique: Malpractice and Reform in China's
Police System'' [Pingxi: Zhongguo jingcha zhidu de bibing he gaige],
Voice of America (Online), 1 September 06.
\126\ See ``Nation Altogether Has 52,000 Police Stations, 490,000
People's Police'' [Quanguo you paichusuo 5.2 wan minjing 49 wan], Legal
Daily (Online), 8 February 06; ``Report Concerning Public Security
Reform (Part 6): Of 770,000 Communities Nationwide, 80 Percent Have
Constructed Police Affairs Offices'' [Quanguo 7.7 wan ge shiqu bacheng
jian you jingwushi--guangzhu gongan gaige baodao zhi liu], Legal Daily
(Online), 10 April 06; ``Report Concerning Public Security Reform (Part
5): 150,000 Criminal Police Pursue 652 Fugitives Each Day Online [15
wan xingjing meitian wang shang zhuitao 652 ren--guangzhu gongan gaige
baodao zhi wu], Legal Daily (Online), 6 April 06.
\127\ ``Clear Drop in Number of Rural Mass Incidents in 2006,
Compared With 2005'' [2006 nian he 2005 nian xiangbi nongcun quntixing
shijian shuliang mingxian xiajiang], PRC Central Government (Online),
30 January 07.
\128\ CECC, 2005 Annual Report, 10.
\129\ Ministry of Public Security (Online), ``Liu Jinguo Calls for
Strengthening Public Security's Grassroots, Fundamentals Work, and
Wholeheartedly Safeguarding Social Stability'' [Liu Jinguo zhichu
jiaqiang gongan jiceng jichu gongzuo, quanli weihu shehui wending], 18
April 07; Zhao Huanxin, ``Farmers' protests drop 20% last year,'' China
Daily (Online), 31 January 07.
\130\ Ministry of Public Security (Online), ``Ministry of Public
Security Announces First Quarter 2006 Nationwide Public Security
Situation (Direct Feed Transcript)'' [Gonganbu tongbao 2006 nian di yi
jidu quanguo shehui zhi'an xingshi (tuwen zhibo)], 11 April 06.
\131\For more information, see CECC, 2006 Annual Report, 45;
``Power Plant Construction Continues After Government Suppresses
Villager Protests in Shanwei,'' CECC China Human Rights and Rule of Law
Update, January 2006, 4-5.
\132\ Ministry of Public Security, ``Liu Jinguo Calls for
Strengthening Public Security's Grassroots, Fundamentals Work, and
Wholeheartedly Safeguarding Social Stability.''
\133\ Ya, ``Critique: Malpractice and Reform in China's Police
System.''
\134\ Ibid.
\135\ Communist Party Central Committee Resolution on Further
Strengthening and Improving Public Security Work [Zhong Gong Zhongyang
guanyu jinyibu jiaqiang he gaijin gongan gongzuo de jueding], issued
November 03.
\136\ Communique of the Sixth Plenum of the Sixteenth Communist
Party Central Committee [Zhongguo Gongchandang di shiliu jie Zhongyang
Weiyuanhui di liu ci quanti huiyi gongbao], issued 11 October 06,
reprinted in Xinhua (Online).
\137\ Communist Party Central Committee Resolution on Major Issues
Regarding the Building of a Harmonious Socialist Society [Zhong Gong
Zhongyang guanyu goujian shehuizhuyi hexie shehui ruogan zhongda wenti
de jueding], issued 11 October 06, reprinted in Xinhua (Online).
\138\ Decoding the Resolution of the Sixth Plenum of the Sixteenth
Communist Party Central Committee: 10 Major Keywords [Jiedu shiliu jie
liu Zhong quanhui ``jueding'' shi da guanjianci], Xinhua, reprinted in
People's Daily (Online), 28 October 06.
\139\ Ministry of Public Security (Online), ``Ministry of Public
Security Convenes Press Conference To Announce Public Security
Situation and Status of Implementation of Community and Village Police
Affairs Strategy'' [Gonganbu zhaokai xinwen fabuhui tongbao shehui
zhi'an xingshi ji shishi shequ he nongcun jingwu zhanlue qingkuang], 14
November 06.
\140\ Wang Doudou, ``Civilians are Most Important Backers of Public
Security: Decoding Community and Village Police Affairs Strategy''
[Baixing shi gongan zuida kaoshan: jiedu shequ he nongcun jingwu
zhanlue], Legal Daily (Online), 14 November 06.
\141\ See supra, ``Detention Outside the Criminal Process,'' and
accompanying notes.
\142\ ``Beijing Police Will Establish a Public Security Violation
Blacklist; Those Who Have Been Punished Will Leave Behind a Record''
[Beijing jingfang jiang jian zhi'an weifa heimingdan; shou chufa zhe
jiang liu andi], Legal Evening News, reprinted in Procuratorial Daily
(Online), 13 April 06.
\143\ Li Jian, ``Why Some Police Resemble Crime Bosses'' [Weishenme
youde jingcha xiang ``heilaoda''], China Youth Daily (Online), 13 July
06.
\144\ ``Zhang Yuqing: Increase Police Types To Take Over City
Management and Carry Out Administration of Urban Order'' [Zhang Yuqing:
zengjia jing zhong jieti chengguan jinxing chengshi zhixu guanli],
Yancheng Evening Post (Online), 12 March 07.
\145\ David Bandurski, ``Are police over-reaching in their
application of China's new law on management of public security?''
China Media Project (Online), 27 July 07.
\146\ CECC, 2006 Annual Report, 46.
\147\ See, e.g., ``Ministry of Public Security Decides To Implement
Resident [Police] Inspection Commissioner System; Residence Period 3
Years'' [Gonganbu jueding shixing paizhu ducha zhuanyuan zhidu; paizhu
shijian 3 nian], Public Security Daily, reprinted in Xinhua (Online),
11 May 06; Ministry of Public Security Implements Resident [Police]
Inspection Commissioner System [Gonganbu shixing paizhu ducha zhuanyuan
zhidu], Legal Daily (Online), 11 Mary 06.
\148\ See Dan Shibing, ``Punish Thuggish Airs of Police [Zhizhi
jingcha piqi],'' Baixing Magazine (Online), 2006.
\149\ See Wu Junyi, ``My View on the New Restrictive Relationship
Between Police and Procuratorate'' [Xinxing de jing, jian zhiyue guanxi
zhi wojian], Procuratorial Daily (Online), 5 February 06.
\150\ Article 14(3)(d) of the ICCPR states that any individual
charged with a crime is entitled:
``[t]o defend himself in person or through legal assistance of his
own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him
in any such case if he does not have sufficient means to pay for it.''
\151\ See, e.g., ``Lawyers Nationwide Total Over 150,000'' [Quanguo
lushi yi da 15 wan yu ren], Legal Daily (Online), 11 July 06 (noting
that this number includes over 7,000 part-time lawyers and 31,957
paralegals).
\152\ ``Central Government Expands Provision of Legal Aid in
Criminal Cases,'' CECC China Human Rights and Rule of Law Update,
December 2005, 5-6; Provisions on Legal Aid Work in Criminal Litigation
[Guanyu xingshi susong falu yuanzhu gongzuo de guiding], issued 28
September 05, art. 4.
\153\ PRC Lawyers Law, enacted 15 May 96, art. 42.
\154\ See Jian Fa, ``Independence Called for Lawyers,'' Beijing
Review (Online), 2 April 04 (citing to a report from the Fifth National
Lawyers Convention).
\155\ See CECC, 2006 Annual Report, 55.
\156\ Pro bono legal defense is guaranteed only to certain, limited
categories of defendants, including minors, those who face a possible
death sentence, and those who are blind, deaf, or mute. CPL, arts. 33,
34; Regulations on Legal Aid [Falu yuanzhu tiaoli], issued 16 July 03,
art. 12.
\157\ In cases involving ``state secrets,'' a criminal suspect must
first obtain the approval of the investigating agency before he can
appoint a lawyer; the lawyer must obtain similar approval before he can
meet with his client. See CPL, art. 96.
\158\ See CECC, 2003 Annual Report, 19-20.
\159\ See CECC, 2006 Annual Report, 55.
\160\ See ibid., 56.
\161\ CPL, art. 45.
\162\ UNWGAD Report.
\163\ See ``First Issuance of a `Lawyers Proposed Draft and
Arguments for Another Revision of the Criminal Procedure Law'''
[``Xingshi Susongfa zai xiugai lushi jianyi gao yu lunzheng'' shoufa],
Defense Lawyer Net, 20 April 07.
\164\ See CECC, 2006 Annual Report, 56.
\165\ Human Rights Watch, ``A Great Danger for Lawyers: New
Regulatory Curbs on Lawyers Representing Protestors,'' December 06, 7.
\166\ Ibid.
\167\ ``Legal Community Denounces All China Lawyers Association For
Harming the Legal Rights of the Masses'' [Fajie chi luxie qianghai
dazhong falu quanli], Ming Pao Daily (Online), 15 June 06.
\168\ UNWGAD Report, para. 38. See also ``Defense Lawyers Turned
Defendants: Zhang Jianzhong and the Criminal Prosecution of Defense
Lawyers in China,'' Congressional-Executive Commission on China, 27 May
03.
\169\ ``NPC Delegate Zhang Yan Proposes Elimination of Criminal Law
Article 306'' [Zhang Yan daibiao jianyi feichu xingfa di san bai ling
liu tiao], Legal Daily (Online), 9 March 06.
\170\ Xiao Yang, ``Scrapping Article 306 Would Make Law Fairer,''
China Daily, 12 April 04; ``Several Problems in the Reform of Judicial
Administration'' [Sifa xingzheng gaige de ruogan falu wenti], Legal
Daily, 12 August 04.
\171\ See supra, ``Social Unrest and Coercive Use of Police
Power,'' and accompanying notes.
\172\ See Chinese Human Rights Defenders (Online), ``The Perils of
Defending Rights: A Report on the Situation of Human Rights Defenders
in China (2006),'' 4 May 07, pt. I(2)(c).
\173\ See CECC, 2006 Annual Report, 57.
\174\ See China Human Rights Lawyers Concern Group, ``Deeply
Concerned About the Recent Incidents of Beating and Detention of
Mainland Human Rights Lawyers,'' 22 June 07.
\175\ Under China's Criminal Law, a court may suspend a prisoner's
sentence and allow that prisoner to serve the period of suspension on
the outside, subject to observation and other restrictions imposed by a
public security organ. See PRC Criminal Law, arts. 72-77.
\176\ See China Human Rights Lawyers Concern Group (Online),
``Demand Immediate Release of Beijing Human Rights Lawyer Gao
Zhisheng,'' 27 September 07. For more information about Gao's open
letter, which called on the Congress to take action against the Chinese
government's human rights abuses, see Human Rights Torch Relay
(Online), ``Gao Zhisheng's letter to the Senate and the Congress of the
United States,'' 12 September 07; Bill Gertz, ``Chinese dissident urges
boycott of Olympics,'' Washington Times (Online), 21 September 07.
\177\ Under China's Criminal Law, a court may impose a
supplementary punishment of ``deprivation of political rights'' (in
addition to fixed-term imprisonment). A term of deprivation of
political rights is typically counted beginning on the date that a
prisoner has completed his sentence. See PRC Criminal Law, arts. 54-55,
58.
\178\ Fang Yuan, ``Status of Shanghai Lawyer Zheng Enchong's
Summons for Interrogation, Petitioners' House Arrest'' [Shanghai lushi
Zheng Enchong bei chuanxun ji rangmin bei ruanjin qingkuang], Radio
Free Asia (Online), 1 October 07.
\179\ The number of criminal defendants who have been found guilty
is actually on the rise, while the number found not guilty continues to
drop. In 2006, Chinese trial courts found 889,042 defendants guilty of
crimes and 1,713 not guilty. Supreme People's Court Work Report [Zuigao
renmin fayuan gongzuo baogao][hereinafter SPC Work Report], 21 March
07. Those numbers were 844,717 guilty, 2,162 not guilty in 2005; and
767,951 guilty, 2,996 not guilty in 2004. See SPC Work Report, 20 March
06.
\180\ Article 14(3)(d) of the ICCPR states that: ``In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law.''
\181\ See supra, ``Political Crimes,'' and accompanying notes.
\182\ See CPL, art. 152.
\183\ For more information, see http://www.yangjianli.com.
\184\ See ``China Frees Protestant Pastor After Three Years,''
Agence France-Presse (Online), 17 September 07; China Aid Association
(Online), ``Renowned Beijing Church Leader Cai Zhuohua Released after
Three Years Imprisonment for distributing Bibles; Forced Labor for
Olympics Products Imposed,'' 14 September 07, for confirmation of Cai's
release. See CECC, 2006 Annual Report, 38; ``Beijing Court Jails House
Church Minister for Giving Away Bibles,'' CECC Human Rights and Rule of
Law Update, December 2005, 1-2 for information about Cai's case.
\185\ Supreme People's Court, Several Opinions on Strengthening the
Open Adjudication Work of the People's Courts [Guanyu jiaqiang renmin
fayuan shenpan gongkai gongzuo de ruogan yijian], issued 4 June 07.
\186\ Responses provided during interrogation may later be used as
evidence at trial, but a court cannot convict and sentence a defendant
``if there is only his statement but no evidence.'' CPL, arts. 46, 93.
\187\ See CECC, 2005 Annual Report, 24 (on the wrongful convictions
of She Xianglin and Nie Shubin); CECC, 2006 Annual Report, 57-58 (on
the wrongful conviction of a Chongqing man for robbery).
\188\ ``Behind the Scenes of a Wrongful Conviction: Judicial
Games'' [Cuo'an muhou de sifa youxi], Xinhua (Online), 14 April 05.
\189\ See ``First Issuance of a `Lawyers Proposed Draft and
Arguments for Another Revision of the Criminal Procedure Law,'''
Defense Lawyer Net.
\190\ See ``Supreme People's Court Maps Future Judicial Reforms in
Five Year Reform Program,'' CECC Human Rights and Rule of Law Update,
February 2006, 7-9; Supreme People's Court, Second Five-Year Reform
Program for the People's Courts (2004-2008)[Renmin fayuan di er ge wu
nian gaige gangyao (2004-2008)], issued 26 October 05.
\191\ ``Behind the Scenes of a Wrongful Conviction: Judicial
Games,'' Xinhua.
\192\ CECC Staff Interviews; Veron Mei-Ying Hung, ``Judicial Reform
in China: Lessons from Shanghai,'' 58 Carnegie Papers 10-11 (April
2005).
\193\ Chinese sources note that the number of crimes punishable by
death increased from 28 under the 1979 Criminal Law to 68
(approximately one-quarter of the total number of crimes) under the
1997 Criminal Law. Xiong Qiuhong, ``Discussing the Defense of Death
Penalty Cases'' [Lun sixing anjian zhong de bianhu], Justice of China
(Online), 20 July 04; Lin Tao, ``Study on the Issues in Hearing and
Reviewing Death Penalty Cases'' [``Sixing'' anjian de shenli yiji fuhe
zhong de wenti yanjiu], China Legal Publicity (Online), 10 January 06.
At least one scholar has characterized 44 (approximately 65 percent) of
the crimes punishable by death as nonviolent crimes. Jiang Anjie,
``Compilation of Viewpoints from the First Period Forum `Concerning
Death Penalty Reform''' [``Guanzhu sixing gaige'' shouqi luntan
guandian huicui], China Legal Publicity (Online), 29 December 05
(quoting Professor Gao Mingxuan, Renmin University). See also ``Death
Penalty Developments in 2005,'' Amnesty International (Online), 20
April 06; ``China to Open More Death Penalty Cases to Public,''
Reuters, reprinted in China Daily (Online), 27 February 06.
\194\ ``PRC Foreign Ministry Spokesman Defends Keeping PRC
Execution Statistics Secret,'' Agence France-Presse, 5 February 04
(Open Source Center, 5 February 04).
\195\ Liu Renwen, a scholar at the Law Institute of the Chinese
Academy of Social Sciences, estimates that China carried out about
8,000 executions in 2005. Geoffrey York, ``China's Secret Execution
Rate Revealed,'' The Globe and Mail (Online), 28 February 06; Antoaneta
Bezlova, ``China to `Kill Fewer, Kill Carefully,''' Asia Times
(Online), 31 March 06. In March 2004, an NPC delegate suggested that
Chinese courts issue death sentences for immediate execution in
``nearly 10,000 cases per year.'' ``41 Representatives Jointly Sign
Proposal for the Supreme People's Court to Take Back the Power of Death
Penalty Approval'' [41 daibiao lianming jianyi, zuigao renmin fayuan
shouhui sixing hezhun quan], China Youth Daily, reprinted in People's
Daily (Online), 10 March 04.
\196\ ``China urged to cut back executions before Olympics (John
Kamm),'' Agence France-Presse, reprinted in Yahoo (Online), 9 June 07.
\197\ Dui Hua Foundation (Online), ``Death Penalty Reform Should
Bring Drop in Chinese Executions,'' Winter 07.
\198\ See CECC, 2003 Annual Report, 21; CECC, 2004 Annual Report,
20.
\199\ ``Organ Transplants: A Zone of Accelerated Regulation''
[Qiguan yizhi: jiakuai guizhi de didai], Caijing Magazine (Online), 28
November 05. In late-2006, Vice Minister Huan reported this
information, stating: ``Apart from a small portion of traffic victims,
most of the organs from cadavers are from executed prisoners.'' Qiu
Quanlin and Zhang Feng, ``In organ donations, charity begins with
body,'' China Daily (Online), 16 November 06.
\200\ ``Court hails penalty review a success,'' Xinhua, reprinted
in China Daily (Online), 10 June 07.
\201\ ``Least number of death sentences meted out in '07,'' Xinhua
(Online), 16 March 07.
\202\ Xie Chuanjiao, ``Fewer executions after legal reform,'' China
Daily (Online), 8 June 07.
\203\ Xie Chuanjiao, ``Capital punishment decreases nationwide,''
China Daily (Online), 5 September 07.
\204\ Wu Jing, ``Supreme People's Court Demands Strengthening of
Criminal Adjudication'' [Zuigao renmin fayuan yaoqiu jiaqiang xingshi
shenpan], People's Daily (Online), 14 September 07.
\205\ Feng Jianhua, ``Taking Back the Power,'' Beijing Review
(Online), 5 February 07.
\206\ Ibid.
\207\ Liu Li, ``In matter of life and death, extra caution,'' China
Daily (Online), 2 November 06.
\208\ See ``China's Supreme Court to Reclaim Death Penalty Review
Right from Lower Tribunals,'' Xinhua, reprinted in People's Daily
(Online), 26 October 05; Song Wei, ``610 Death Penalty Judges
Congregate in Beijing for Rotational Training, Consolidating the
Measure of Death Penalty Standards'' [610 ming sixing faguan Beijing
jizhong lunxun; tongyi sixing biaozhun chidu], Democracy & Law Times
[Minzhu yu fazhi shibao], reprinted in Defense Lawyer Net, 13 November
06.
\209\ CECC, 2006 Annual Report, 58-59.
\210\ See supra, ``Fairness of Criminal Trials,'' and accompanying
notes.
\211\ For additional information on the reform program's specific
provisions related to death penalty reform, see CECC, 2006 Annual
Report, 58-59.
\212\ In September 2006, the SPC and Supreme People's Procuratorate
jointly issued a judicial interpretation to provide guidance on when
and how to conduct an appeals hearing in a death penalty case. See
Supreme People's Court and Supreme People's Procuratorate, Trial
Provisions on Several Issues Regarding Court Hearing Procedures in
Death Penalty Appeals Cases [Guanyu sixing di er shen anjian kaiting
shenli chengxu ruogan wenti de guiding], issued 21 September 06.
Nonetheless, an SPC Vice President noted in July 2007 that provincial-
level high courts continue to apply uneven standards during such
hearings. See Xie Chuanjiao, ``Supreme court targets `judicial
injustice,''' China Daily (Online) 5 July 07.
\213\ Article 13 of the PRC Organic Law of the People's Courts was
amended on October 31, 2006, to read: ``Death penalty sentences, with
the exception of those decided by the Supreme People's Courts, shall be
submitted to the Supreme People's Court for review and approval.''
National People's Congress Standing Committee, Decision on Amending the
``Organic Law of the People's Courts'' [Guanyu xiugai ``Zhonghua Renmin
Gongheguo renmin fayuan zuzhifa'' de jueding], issued 31 October 06. In
January 2007, the SPC issued a judicial interpretation to provide
guidance on when and how to review and approve a death sentence. See
Supreme People's Court, Provisions on Some Issues Regarding Review of
Death Penalty Cases [Zuigao renmin fayuan guanyu fuhe sixing anjian
ruogan wenti de guiding], issued 22 January 07.
\214\ Supreme People's Court, Decision on Issues Relating to
Consolidated Review of Death Penalty Cases [Guanyu tongyi xingshi
sixing anjian hezhun quan youguan wenti de jueding], issued 28 December
06.
\215\ See Supreme People's Court, Supreme People's Procuratorate,
Ministry of Public Security, Ministry of Justice, Opinion on Further
Handling Cases in Strict Accordance with Law, to Ensure the Quality of
Death Penalty Case Handling [Guanyu jinyibu yange yifa ban an quebao
banli sixing anjian zhiliang de yijian], issued 9 March 07.
\216\ Ibid., Items 6 and 13.
\217\ See, e.g., ibid., Item 34.
\218\ Ibid., Item 45.
\219\ Ibid., Item 48.
\220\ ``British Transplantation Society Criticizes the Alleged Use
of Organs Without Consent from Prisoners Executed in the People's
Republic of China,'' The British Transplantation Society (Online), 19
April 06; David Matas and David Kilgour, Report into Allegations of
Organ Harvesting of Falun Gong Practitioners in China, 6 July 06,
available at ``Report Into Allegations of Organ Harvesting of Falun
Gong Practitioners in China,'' Epoch Times (Online), 7 July 06.
\221\ David Matas and David Kilgour, Revised Report into
Allegations of Organ Harvesting of Falun Gong Practitioners in China,
31 January 07, available at http://organharvestinvestigation.net/.
\222\ See, e.g., Ministry of Foreign Affairs (Online), ``September
28, 2006, Routine Press Conference Q&A With Foreign Ministry Spokesman
Qin Gang'' [2006 nian 9 yue 28 ri Waijiaobu fayanren Qin Gang zai
lixing jizhehui shang da jizhe wen], 28 September 06; Qiu and Zhang,
``In organ donations, charity begins with body.''
\223\ Temporary Provisions Regarding the Use of Corpses or Organs
from Executed Prisoners [Guanyu liyong sixing zuifan shiti qiguan de
zanxing guiding], issued 9 October 84, para. 3.
\224\ Ji Minhua and Zhang Yingguang, ``Beijing Mulls New Law on
Transplants of Deathrow Inmate Organs,'' Caijing Magazine (Online), 28
November 05.
\225\ State Council, Regulations on Human Organ Transplants [Renti
qiguan yizhi tiaoli], issued 21 March 07.
\226\ ``China Agrees Not To Take Inmates' Organs,'' Associated
Press (Online), 5 October 07.
Notes to Section II--Worker Rights
\1\ See the discussion on the ``Labor Contract Law,'' infra, for
more information.
\2\ See, e.g., Guan Xiaofeng, ``Labor Disputes Threaten
Stability,'' China Daily, 30 January 07 (Open Source Center, 30 January
07).
\3\ These other rights are ``the elimination of all forms of forced
or compulsory labour; the effective abolition of child labour; and the
elimination of discrimination in respect of employment and
occupation.'' ILO Declaration on Fundamental Principles and Rights at
Work, 18 June 98, International Labor Organization (Online), art. 2
[hereinafter ILO Declaration].
\4\ See ``ILO Tripartite Constituents in China,'' International
Labour Organization (Online), last visited 27 September 07.
\5\ ILO Declaration, art. 2. China has been a member of the ILO
since its founding in 1919. For more information, see the country
profile on China in the ILO database of labor, social security and
human rights legislation (NATLEX) (Online).
\6\ ``Ratifications of the Fundamental Human Rights Conventions by
Country,'' International Labor Organization (Online), 11 September 07.
\7\ ``China: Forced Labor and Trafficking: The Role of Labour
Institution in Law Enforcement and International Cooperation,''
International Labour Organization (Online), August 05.
\8\ See generally PRC Labor Law, enacted 5 July 94, art. 12.
\9\ International Covenant on Economic, Social, and Cultural Rights
adopted by General Assembly resolution 2200A (XXI) of 16 December 66,
entry into force 3 January 76, art. 8.
\10\ Declarations and Reservations, United Nations Treaty
Collection (Online), 5 February 02. Article 10 of China's Trade Union
Law establishes the All-China Federation of Trade Unions as the
``unified national trade union federation,'' and Article 11 mandates
that all unions must be approved by the next higher-level union body,
giving the ACFTU an absolute veto over the establishment of any local
union and the legal authority to block independent labor associations.
PRC Trade Union Law, enacted 3 April 1992, amended 27 October 01, art.
10, 11.
\11\ International Covenant on Civil and Political Rights (ICCPR),
adopted by General Assembly resolution 2200A (XXI) of 16 December 66,
entry into force 23 March 76, art. 22. The Chinese government has
committed itself to ratifying, and thus bringing its laws into
conformity with, the ICCPR and reaffirmed its commitment as recently as
April 13, 2006, in its application for membership in the UN Human
Rights Council. China's top leaders have previously stated on three
separate occasions that they are preparing for ratification of the
ICCPR, including in a September 6, 2005, statement by Politburo member
and State Councilor Luo Gan at the 22nd World Congress on Law, in
statements by Chinese Premier Wen Jiabao during his May 2005 Europe
tour, and in a January 27, 2004, speech by Chinese President Hu Jintao
before the French National Assembly. As a signatory to the ICCPR, China
is required under Article 18 of the Vienna Convention on the Law of
Treaties, to which it is a party, ``to refrain from acts which would
defeat the object and purpose of a treaty'' it has signed. Vienna
Convention on the Law of Treaties, enacted 23 May 69, entry into force
27 January 80, art. 18.
\12\ PRC Trade Union Law, art. 2, 4.
\13\ For an overview of ACFTU programs hat have promoted worker
rights, see the section on ``ACFTU Role in Protecting Worker Rights''
in the CECC 2006 Annual Report, 67. For a summary of surveys of trade
union leadership in Guangzhou and Shenyang, see ``Is the All China
Federation of Trade Unions Merely a Front for the Communist Party and
Enterprise Management?,'' China Labour Bulletin (Online), 1 August 07.
\14\ See the CECC Political Prisoner Database for more details.
\15\ According to information from the ACFTU reported by CSR Asia
Weekly, the government enacted its first comprehensive labor law in
1994, and officials first proposed supplementing it with a labor
contract law in 1996. After drafting of the law stalled in 1998, work
on a new labor contract law began in 2004. ``Labour Contract Law of the
PRC,'' CSR Asia Weekly (Online), 4 July 07. ``China's Legislature
Adopts Labor Contract Law,'' Xinhua (Online), 29 June 07. The
government claimed that more than 65% of the comments were from Chinese
workers. ``Chinese Public Makes Over 190,000 Suggestions on Draft Labor
Contract Law,'' Xinhua, 21 April 06 (Open Source Center, 21 April 06).
\16\ CECC Staff Interviews.
\17\ PRC Labor Contract Law, adopted 29 June 07, art. 2.
\18\ PRC Labor Law, art. 16, 19.
\19\ PRC Labor Contract Law, art. 10. If no contract exists at the
time the relationship starts, it must be signed within one month.
\20\ Ibid., art. 14.
\21\ Ibid., art. 14.
\22\ Ibid., art. 17.
\23\ Ibid., art. 36-50 (on terminations generally); 57-67 (on
workers employed through staffing firms); and 80-95 (on legal
liability). See also discussion infra.
\24\ Josephine Ma, ``New Law To Protect Mainland Workers,'' South
China Morning Post (Online), 30 June 07.
\25\ For an overview of several surveys on the use of labor
contracts, see ``Internal Migrants: Discrimination and Abuse,'' Amnesty
International (Online), 1 March 07.
\26\ As the China Labour Bulletin observes, ``All too often in
China, employers can disregard the terms and conditions of the
contracts they have signed with their workers and impose their own
terms and conditions as and when it suits them.'' ``National People's
Congress Approves New Labour Contract Law,'' China Labour Bulletin
(Online), 29 June 07.
\27\ Article 97 states that written contracts established before
the law's implementation remain in force, but includes no provisions to
address existing written contracts that do not abide by the terms of
the Labor Contract Law. PRC Labor Contract Law, art. 97.
\28\ Ibid., art.62.
\29\ Ibid., art.22.
\30\ ``Employers Sacking Workers Before the Labour Contract Law Is
Implemented,'' China Labour Bulletin (Online), 14 September 07.
\31\ PRC Labor Contract Law, art.58.
\32\ Ibid., art.63.
\33\ Ibid., art.62(3), 62(5).
\34\ Ibid., art.64.
\35\ Ibid., art. 60.
\36\ See, e.g., PRC Labor Contract Law (Draft) [Zhonghua renmin
gongheguo laodong hetong fa (cao an)], 20 March 2006, art. 12, 24, 40.
\37\ PRC Labor Contract Law, art. 72.
\38\ ``Draft Labour Contract Law Improves Protection of Part-Time
Workers,'' Xinhua (Online), 24 June 07. The foreign-owned fast food
restaurants investigated also denied part-time workers benefits and
failed to abide by overtime regulations, among other violations. ``Fast
Food and Wages in China,''CSR Asia, (Online), 12 April 07.
\39\ PRC Labor Contract Law, art. 72.
\40\ Ibid., art. 71.
\41\ PRC Labor Contract Law (Draft), art. 33.
\42\ PRC Labor Contract Law, art. 41.
\43\ Ibid., art. 41.
\44\ Ibid., art. 42.
\45\ Ibid., art. 43.
\46\ Ibid., art. 46.
\47\ Ibid., art. 47.
\48\ Ibid., art. 47.
\49\ Ibid., arts. 73-74.
\50\ Ibid., arts. 76.
\51\ Translated portions of the study, conducted by the State
Council Research Office Study Group and originally published as the
book China Peasant Worker Research Report in April 2006, is available
at ``PRC: Excerpts of State Council Research Report on Migrant
Workers,'' Open Source Center, 12 September 07.
\52\ PRC Labor Contract Law, art. 77.
\53\ Ibid., art. 82.
\54\ See generally Chapter 7, Legal Liability (articles 80-95) in
the Labor Contract Law.
\55\ Ibid., art. 90. Article 86 holds either party liable where an
invalid contract causes harm to one side.
\56\ Ibid., arts. 51-56. The draft of the law released in March
2006 provided for collective bargaining but lacked the consolidated set
of provisions of the final version. PRC Labor Contract Law (Draft),
art. 7, 11, 23, 44, 45, 46, 48, 50, 51.
\57\ PRC Trade Union Law, art. 20; Provisions on Collective
Contracts [Jiti hetong guiding], issued 20 January 04.
\58\ CECC Staff Interviews.
\59\ PRC Labor Contract Law, art. 51. See also ``National People's
Congress Approves New Labour Contract Law,'' China Labour Bulletin.
\60\ Simon Clarke, Chang-Hee Lee, and Qi Li, ``Collective
Consultation and Industrial Relations in China,'' 42 Brit. J.
Industrial Relations 235, 242 (2004).
\61\ Ibid., 246-247.
\62\ Information provided by U.S. Embassy Beijing.
\63\ ``ACFTU Issues `2006 Blue Book on Chinese Trade Unions
Safeguarding the Rights and Interests of Workers,''' People's Daily,
reprinted on China Trade Union News (Online), 15 May 07.
\64\ PRC Labor Contract Law, art. 18.
\65\ Ibid., art. 26.
\66\ Ibid., art. 56.
\67\ Ibid., art. 77-78.
\68\ For a description of costs involved, see ``Xinjiang People's
Congress Representative Appeals for Abolition of Labor Arbitration
Procedure'' [Xinjiang renda daibiao huyu quxiao laodong zhongcai
qianzhi de falu chengxu], Xinhua (Online), 20 January 06.
\69\ PRC Labor Law, art. 77-84.
\70\ Compare PRC Labor Law, enacted 5 July 94, art. 79 to PRC Labor
Contract Law, adopted 29 June 07, arts. 26, 56, 77.
\71\ ``Law To Deal with Rising Number of Labor Disputes To Be
Enacted,'' Xinhua, 27 August 07, reprinted on the National People's
Congress Web site.
\72\ Ibid.
\73\ ``National People's Congress Approves New Labour Contract
Law,'' China Labour Bulletin. For additional evaluations, see, e.g.,
Tim Costello, Brendan Smith, and Jeremy Brecher, ``Labor Rights in
China,'' Foreign Policy in Focus (Online), 21 December 06.
\74\ See, e.g., Bill Savadove, ``Firms Say New Labour Law is a Step
Backwards,'' South China Morning Post (Online), 21 March 06; Bill
Savadove, ``Labour Law Won't Go to NPC in March; But Regulation--Which
Foreign Firms Say is Too Strict--Still Expected To Pass This Year,''
South China Morning Post (Online), 31 January 07; Joe McDonald, ``China
Due to Enact New Labor Law After Heated Debate,'' Associated Press, 27
June 07; Joseph Kahn and David Barboza, ``China Passes a Sweeping Labor
Law,'' New York Times (Online) 30 June 07.
\75\ CECC Staff Interviews. Comments addressed the draft version
released in March 2006 and subsequent revisions. See, e.g., American
Chamber of Commerce in the People's Republic of China, ``Comments on
the Draft Labor Contract Law of the People's Republic of China,'' 19
April 06; US-China Business Council, ``Comments on the Draft Labor
Contract Law of the People's Republic of China (Draft of March 20,
2006),'' 19 April 06; American Chamber of Commerce in Shanghai,
``AmCham Shanghai and AmCham China (Beijing) Comments on Draft Two of
the PRC Labor Contract Law,'' last viewed 7 October 07; US-China
Business Council, ``Comments on the Draft People's Republic of China
Law on Employment Contracts (Draft of December 24, 2006),'' last viewed
7 October 07.
\76\ American Chamber of Commerce, ``Comments on the Draft Labor
Contract Law.''
\77\ CECC Staff Interviews; US-China Business Council, ``Comments
on the Draft People's Republic of China Law on Employment Contracts
(Draft of December 24, 2006);'' Sarah Schafer, ``Now They Speak Out,''
Newsweek International (Online), 28 May 07; Andrew Batson and Mei Fong,
``China Toils Over New Labor Law,'' The Wall Street Journal (Online), 7
May 2007; ``Undue Influence: Corporations Gain Ground in Battle Over
China's New Labor Law,'' Global Labor Strategies, March 2007; ``The
Chinese Draft Contract Law--A Global Debate,'' CSR Asia, 25 April 2007;
``Behind the Great Wall of China: U. S. Corporations Opposing New
Rights for Chinese Workers,'' Global Labor Strategies (Online), last
viewed 7 October 07.
\78\ CECC Staff Interviews; US-China Business Council, ``Comments
on the Draft People's Republic of China Law on Employment Contracts
(Draft of December 24, 2006);'' Batson and Fong, ``China Toils Over New
Labor Law;'' Schafer, ``Now They Speak Out;'' ``The Chinese Draft
Contract Law,'' CSR Asia; ``Behind the Great Wall of China,'' Global
Labor Strategies; ``Twenty-Seven Democrats Ask Bush To Support China's
Proposed Labor Law,'' Daily Labor Report, No. 213, 3 November 2006, A-
8.
\79\ US-China Business Council, ``Comments on the Draft People's
Republic of China Law on Employment Contracts (Draft of December 24,
2006).''
\80\ ``Behind the Great Wall of China,'' Global Labor Strategies,
3; ``The Chinese Draft Contract Law,'' CSR Asia.
\81\ American Chamber of Commerce, ``Comments on the Draft Labor
Contract Law.'' AmCham disputed reports that it had opposed the draft
Labor Contract Law. See American Chamber of Commerce in the People's
Republic of China, ``Re: Press Reports Concerning AmCham-China and the
PRC Draft Labor Contract Law,'' 18 June 07.
\82\ ``European Union Chamber of Commerce in China Welcomes the
Promulgation of the Labour Contract Law,'' European Chamber of Commerce
Web site (Online), 1 July 07. Joe McDonald, ``China Due To Enact New
Labor Law After Heated Debate.''
\83\ Guan Xiaofeng, ``Labor Law `Will Not Hurt Investment
Environment,''' China Daily, 3 July 07.
\84\ Quoted in Jude Blanchette, ``Key Issues for China's New Labor
Law: Enforcement,'' Christian Science Monitor, 2 July 07.
\85\ PRC Employment Promotion Law, adopted 30 August 07, art. 28.
\86\ Ibid., art. 3. Other laws have also included this provision.
See, e.g., PRC Labor Law, art. 12.
\87\ PRC Employment Promotion Law, art. 27, 28.
\88\ Ibid., art. 29.
\89\ Ibid., art. 31.
\90\ Ibid., art. 30.
\91\ Ibid., art. 62.
\92\ ``Survey: Discrimination in Job Market Common,'' Xinhua
(Online), 27 June 07.
\93\ PRC Employment Promotion Law, art. 7.
\94\ Ibid., art. 9.
\95\ Ibid., art. 52.
\96\ Ibid., art. 16.
\97\ PRC Labor Law, art. 48.
\98\ PRC Labor Contract Law, art. 72, 74, 85.
\99\ ``Most Provincial-Level Governments Issue Hourly Minimum Wage
Standards,'' CECC China Human Rights and Rule of Law Update, November
2006, 7-8. Legal provisions governing minimum wages require provincial-
level governments to formulate the minimum wage standards for their
area, in consultation with local unions and businesses. The MOLSS has
two weeks to review draft standards submitted by the local labor and
social security bureaus. The standards are deemed approved if the MOLSS
does not raise objections during this period. The provisions set forth
a number of factors that provincial governments should consider in
calculating the minimum wage, including the average salary, minimum
living expenses, unemployment rate, and level of economic development
in their area. See generally Provisions on Minimum Wages [Zui di gongzi
guiding], issued 20 January 04.
\100\ See ``Most Provincial-Level Governments Issue Hourly Minimum
Wage Standards,'' CECC China Human Rights and Rule of Law Update,
November 2006, 7-8, noting that the 2006 MOLSS report recorded the
highest monthly minimum wage in Shenzhen, at 810 yuan (US$101.25), the
highest hourly minimum wage in Beijing, at 7.9 yuan (US$0.99), and the
lowest monthly and hourly minimum wages in Jiangxi, at 270 yuan
(US$33.75) and 2.7 yuan (US$0.34), respectively.
\101\ ``China's Trade Union Calls for Minimum Wage Boost,'' Xinhua
(Online), 19 May 07.
\102\ ``Internal Migrants: Discrimination and Abuse,'' Amnesty
International.
\103\ Ibid.
\104\ ``Government To Reduce Income Gap Through Reform,'' China
Daily, 18 July 06 .
\105\ ``Ministry of Finance 8-Item Work Deciphered: Wage Revolution
`Limits High [Wages], Stabilizes Middle [Incomes], Brings Up Low
[Wages]''' [Caizhengbu ba xiang goingzuo jiedu: gongzi gaige ``xian gao
wen zhong tuo di''], People's Daily (Online), 7 November 06.
\106\ `` `Limit High [Wages], Stabilize Middle [Incomes], Bring Up
Low [Wages],' Reducing Subsidies for High Income Earners Is Not the
Same as Equal Distribution,'' Yanzhao Metropolitan Newspaper, reprinted
in China Economic Daily, 9 November 06.
\107\ Stephen Chen, ``Forced Wages Rises Won't Work; Official
Labour Officer Says Beijing Can't Set Salaries,'' South China Morning
Post (Online), 18 July 2007.
\108\ ``Communications Ministry Orders Push To Resolve Unpaid
Migrant Wage Claims,'' CECC China Human Rights and Rule of Law Update,
August 2006, 2-3.
\109\This number figure represents a decrease from previous years
in the amount of unpaid wages. ``Internal Migrants: Discrimination and
Abuse,'' Amnesty International.
\110\ ``Migrants Frustrated Over Unpaid Wages, Xinhua, reprinted in
China Daily, 31 December 06.
\111\ Implementing Measures for the Qinghai Province Construction
Sector Migrant Worker Wage Payment Deposit System (Trial Measures)
[Qinghaisheng jianshe lingyu nongmingong gongzi zhifu baozhengjin zhidu
shishi banfa (shixing)], issued October 06, art. 2, 17.
\112\ ``30 Firms Blacklisted for Defaulting Wages,'' Xinhua
(Online), 27 June 06.
\113\ See, e.g., Chenyan Liu, ``China's Construction Sector:
Untangling CSR Issues,'' CSR Asia Weekly, Vol. 1 Week 22, 2005.
``Internal Migrants: Discrimination and Abuse,'' Amnesty International.
\114\ `More on Migrants Beaten Up in China After Demanding Unpaid
Wages,'' BBC Monitoring Asia Pacific, citing Xinhua, 2 July 07. Zhuang
Pinghui, ``Gang Beat Migrants Demanding Wages,'' South China Morning
Post (Online), 2 July 07.
\115\ See, e.g., ``Internal Migrants: Discrimination and Abuse,''
Amnesty International. See also the CECC 2006 Annual Report, 65-66, for
more information on financial and other obstacles workers face in
trying to recover wages and resolve other disputes.
\116\ See Ministry of Labor and Social Security (Online), ``2006
Statistical Communique on the Development of Labor and Social Security
Affairs,'' last visited 10 October 07. For statistics by year, see data
from the National Bureau of Statistics of China Web site. See also Guan
Xiaofeng, ``Labor Disputes Threaten Stability,'' China Daily, 30
January 07 Open Source Center, 30 January 07); ``China To Enact Law To
Deal With Rising Number of Labor Disputes,'' Xinhua, 26 August 07 (Open
Source Center, 26 August 07).
\117\ ``Labour Disputes Threaten China's Stability: Report,''
Reuters (Online), 30 January 07.
\118\ PRC Labor Law, art. 36.
\119\ Dexter Roberts and Pete Engardio, ``Secrets, Lies, and
Sweatshops,'' Business Week, 27 November 2006.
\120\ China Labour Bulletin, ``Falling Through the Floor: Migrant
Women Workers' Quest for Decent Work in Dongguan, China,'' September
06, 6, 10, 15.
\121\ Dexter Roberts and Pete Engardio, ``Secrets, Lies, and
Sweatshops.''
\122\ ``Work Injury Insurance Covers 100 Million Chinese,''
Corporate Social Responsibility Asia, 29 February 06; ``Loopholes Seen
To Undermine China's Unemployment Insurance System,'' BBC Asia, 6
December 2006.
\123\ ``Extending Old-age Insurance Coverage in the People's
Republic of China,'' International Labor Organization (Online), January
06, 6, 19.
\124\ Working Conditions in China: Just and Favorable, Staff
Roundtable of the Congressional-Executive Commission on China, 3
November 05, Testimony of Dan Viederman, Verite.
\125\ ``Internal Migrants: Discrimination and Abuse,'' Amnesty
International.
\126\ Women are entitled to 90 days of leave under the 1994 Labor
Law. PRC Labor Law, art. 62.
\127\ The survey data was collected from 6,595 questionnaires
handed out in 416 villages and four cities. ``Female Migrants Suffering
at Work,'' China Daily, 30 November 06 (Open Source Center, 30 November
06).
\128\ ``No Social Aid, Work Contracts for 50 Per Cent of Women in
Chinese Cities-Poll'' BBC Asia, 10 December 2006 (Nexis, 10 December
06).
\129\ PRC Labor Law, art. 73.
\130\ See, e.g., ``MOLSS Circular Concerning Implementation of the
Essence of the State Council Standing Committee on Issues Related To
Strengthening Social Security Funds Supervision'' [Laodong he shehui
baozhangbu guanyu guancheluoshi guowuyuan changwu huiyi jingshen
jiaqiang shehui baoxian jijin jianguan youguan wenti de tongzhi],
issued 30 November 06; See also Opinion Concerning Strengthening Social
Security Fund Supervision and Enforcing Fund Rules [Guanyu jin yi bu
jiaqiang shehui baoxian jijin jianguan yansu jijin jilu de yijian],
issued 29 September 06. For more information, see, e.g., Mu Tzu,
``Central Authorities Will Recover Power of Social Security Fund
Management,'' Hong Kong Commercial Daily, 27 September 06 (Open Source
Center, 29 September 06).
\131\ Cary Huang, ```Iron Face' Vows To Stop Forever Misuse of
Social Security Funds,'' South China Morning Post (Online), 25 June 07.
\132\ Pete Engardio, Dexter Roberts, Frederik Balfour, and Bruce
Einhorn, ``Broken China,'' Business Week (Online), 23 July 07.
\133\ ``2020 Set as Goal for National Insurance Plan,'' South China
Morning Post (Online), 13 October 06.
\134\ ``Government Strengthens Enforcement of Requirements on
Injury Insurance,'' CECC China Human Rights and Rule of Law Update,
October 2006, 4.
\135\ CECC Staff Interviews.
\136\ See, e.g., ``Fatalities Down in Work Accidents, But China's
Work Safety Still `Grim,''' Xinhua, 28 August 07 (Open Source Center,
28 August 07); ```Work Safety Situation Still Grim,''' China Daily
(Online), 3 September 07.
\137\ ``35,800 Firms Ordered To Close Over Safety Concerns,''
Xinhua (Online), 16 February 06.
\138\ Sixth Amendment to the Criminal Law of the People's Republic
of China [Zhonghua renmin gonghe guo xingfa xiuzheng an (liu)], issued
29 June 06. See also PRC Criminal Law, enacted 1 July 79, amended 14
March 97, 25 December 99, 31 August 01, 29 December 01, 28 December 02,
28 February 05, 29 June 05, 29 June 06, art. 244.
\139\ Bureau of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices--2006, China (includes Tibet, Hong Kong, and
Macau) (Online), 6 March 07.
\140\ Ibid.
\141\ ``700 Million People Might Suffer from Occupational
Illnesses, Government Says,'' China Labour Bulletin (Online), 23
January 06.
\142\ China Labour Bulletin, ``Falling Through the Floor: Migrant
Women Workers' Quest for Decent Work in Dongguan, China.''
\143\ ``China Sees Coal Mine Deaths Fall, But Outlook Grim,''
Reuters (Online), 10 January 07.
\144\ Simon Elegant and Zhang Jiachang, ``Where the Coal Is Stained
with Blood,'' Time Magazine, 2 March 07.
\145\ ``Government Issues New Coal Mine Provisions as Mining
Fatalities Increase,'' CECC China Human Rights and Rule of Law Update,
December 06, 7-8.
\146\ Investigation cited in ``95.6 Per Cent of All Officials in
Mining Disaster Cases Receive No Punishment or Get a Suspended
Sentence,'' China Labour Bulletin, May 24, 2006.
\147\ Ibid.
\148\ ``China Criticizes Mine Cover-ups,'' Agence France-Presse, 19
April 07 (Nexis, 19 April 07).
\149\ Rising prices for coal, which makes up over 70 percent of
China's energy supply, have fueled the proliferation on small,
unregulated mines. ``China's Coal Mines Bottoming Out,'' The Economist
(Online), 23 August 07.
\150\ Elegant and Zhang, ``Where the Coal Is Stained with Blood.''
\151\ Translated portions of the study, conducted by the State
Council Research Office Study Group and originally published as the
book China Peasant Worker Research Report in April 2006, is available
at ``PRC: Excerpts of State Council Research Report on Migrant
Workers,'' Open Source Center, 12 September 07.
\152\ Vivien Cui and Kevin Huang, ``China's Neglected
`Untouchables,''' South China Morning Post, 1 May 06.
\153\ Raymond Li, ``Legal Aid Network To Help Migrants; Pact to
Tackle Unpaid Wages and Injuries,'' South China Morning Post, 5 July
2007.
\154\ Josephine Ma, ``Pension Plan for Migrant Workers,'' South
China Morning Post, 12 June 07.
\155\ ``Extending Old-age Insurance Coverage in the People's
Republic of China,'' International Labor Organization (Online), January
06, 29.
\156\ ILO Convention (No. 138) concerning Minimum Age for Admission
to Employment, 26 June 73; ILO Convention (No. 182) concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms
of Child Labour, 17 June 99.
\157\ PRC Labor Law, enacted 5 July 94, art. 15. See also Law on
the Protection of Minors, issued 4 September 91, art. 28. See generally
Provisions on Prohibiting the Use of Child Labor [Jinzhi shiyong
tonggong guiding], issued 1 October 02.
\158\ Provisions on Prohibiting the Use of Child Labor, art. 6.
\159\ This provision was added into the fourth amendment to the
Criminal Law in 2002. Fourth Amendment to the Criminal Law of the
People's Republic of China [Zhonghua renmin gonghe guo xingfa xiuzheng
an (si)], issued 28 December 02. See also PRC Criminal Law, enacted 1
July 79, amended 14 March 97, 25 December 99, 31 August 01, 29 December
01, 28 December 02, 28 February 05, 29 June 05, 29 June 06, art. 244.
\160\ ``Small Hands: A Survey Report on Child Labour in China,''
China Labour Bulletin (Online), September 07, 3.
\161\ Ibid., 8.
\162\ Ibid., 15, 22, 25-32.
\163\ For more information on this phenomenon, see Report of the
Committee of Experts on the Application of Conventions and
Recommendations Worst Forms of Child Labour Convention, 1999 (No. 182)
China (ratification: 2002) Observation, CEACR 2006/77th Session,
International Labor Organization (Online), 2006.
\164\ See, e.g., ILO Convention (No. 182) concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms
of Child Labour, art. 3, defining such labor to include forced or
compulsory labor.
\165\ See, e.g., ``Olympic Firm Admits Child Labour,'' BBC
(Online), 13 June 07.
\166\ For the government response to forced labor in brick kilns,
including child labor, see, e.g., Zhang Pinghui, ``Crackdown on Slave
Labour Nationwide--State Council Vows To End Enslavement,'' South China
Morning Post (Online), 21 June 07.
\167\ ``Xinjiang Government Continues Controversial `Work-Study'
Program,'' CECC China Human Rights and Rule of Law Update, November
2006, 11.
\168\ Provisions on Prohibiting the Use of Child Labor, art. 13.
\169\ PRC Education Law, issued 18 March 95, art. 58.
\170\ See generally ``Regulation on Nationwide Temporary Work-Study
Labor for Secondary and Elementary Schools'' [Quanguo zhong xiaoxue
qingongjianxue zanxing gongzuo tiaoli], issued 20 February 83.
\171\ ILO Convention 138 permits vocational education for underage
minors only where it is an ``integral part'' of a course of study or
training course. ILO Convention 182 obligates Member States to
eliminate the ``worst forms of child labor,'' including ``forced or
compulsory labor.'' ILO Convention (No. 138) concerning Minimum Age for
Admission to Employment; ILO Convention (No. 182) concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms
of Child Labour.
\172\ Report of the Committee of Experts on the Application of
Conventions and Recommendations Worst Forms of Child Labour Convention,
International Labor Organization.
\173\ ``Henan Teacher Recruits Underage Students for Work in
Zhejiang Factory,'' CECC China Human Rights and Rule of Law Update,
November 2006, 8.
\174\ ``Teachers Arrange for Underage `Interns' To Work at
Guangdong Electronics Factory,'' CECC China Human Rights and Rule of
Law Update, June 2006, 15.
\175\ Howard W. French, ``Child Slave Labor Revelations Sweeping
China,'' International Herald Tribune (Online), 15 June 07; He Huifeng,
``I Thought There Was Nothing He Could Take From Me, So I Went'' South
China Morning Post (Online), 15 June 07; Josephine Ma, ``Trafficker
Admits To Selling 3,000 Labourers in Three Years,'' South China Morning
Post (Online), 20 June 07; Zhang, ``Crackdown on Slave Labour
Nationwide--State Council Vows To End Enslavement;'' Josephine Ma,
``Illegal Kilns Used Over 50,000 Laborers,'' South China Morning Post
(Online), 26 June 2007.
\176\ Howard W. French, ``Child Slave Labor Revelations Sweeping
China.''
\177\ ``1,340 Rescued From Forced Labor,'' Xinhua (Online), 13
August 07.
\178\ ``Top Official Plays Down Scale of Kiln Slavery,'' South
China Morning Post (Online), 14 August 07.
\179\ Cited in Ting Shi, ``Officials Targeted in Slavery Scandal--
Public Anger Mounting at Coercion of Kiln Workers in Shanxi,'' South
China Morning Post (Online), 18 June 07.
\180\ Josephine Ma and Ng Tze-wei, ``Police Admit Failure To Stem
Slavery--Henan Labour Abuses `Solved' Three Years Ago,'' South China
Morning Post (Online), 20 June 07.
\181\ Alice Yan, ``Brick Kiln Foreman Gets Death Penalty; 28 Others
are Jailed,'' South China Morning Post (Online), 18 July 07; ``Death
Sentence Over China Slave Scandal,'' Agence France-Presse, reprinted in
Yahoo news, 17 July 07.
\182\ ``Death Sentence Over China Slave Scandal,'' Agence France-
Presse.
\183\ ``Top Official Plays Down Scale of Kiln Slavery,'' South
China Morning Post.
\184\ Ng Tze-wei, ``Lawyers' Group Calls for Anti-Slavery Law,''
South China Morning Post (Online), 10 July 07.
\185\ CECC Staff Interviews.
Notes to Section II--Freedom of Expression
\1\ CECC, 2005 Annual Report, 11 October 05, 103. According to a
2005 State Council Information Office White Paper: ``The Chinese
government requires its subordinate departments at all levels to make
public their administrative affairs as far as possible, so as to
enhance the transparency of government work and guarantee the people's
right to know, participate in and supervise the work of the
government.'' State Council Information Office, White Paper on
Political Democracy, 19 October 05.
\2\ CECC, 2003 Annual Report, 2 October 03, 61-62.
\3\ ``China Effectively Promotes Administrative Transparency,''
People's Daily (Online), 23 March 07.
\4\ For example, the Web site for the State Environmental
Protection Administration contains links to relevant policies, laws,
and regulations, a daily report on air quality in major cities, and
news stories on the environment. State Environmental Protection
Administration of China (Online), visited on August 28, 2007.
\5\ ``China's Media Announcement Work and Construction of Media
Spokesperson System Makes New Progress'' [Zhongguo xinwen fabu gongzuo
he xinwen fayanren zhidu jianshe qude xin fazhan], China.com.cn
(Online), 22 January 07; ``Supreme People's Court and High Courts Have
Already All Established News Spokespersons'' [Zhongguo zuigaofayuan he
gaojifayuan yi quanbu jianli xinwen fayanren], Xinhua, reprinted in
People's Daily (Online), 12 September 06.
\6\ See, e.g., Regulation on the Handling of Public Health
Emergencies [Tufa gonggong weisheng shijian yingji tiaoli], issued 9
May 03, art. 45; Ching-Ching Ni, ``China Toughens Stance on
Environmental Protection,'' Los Angeles Times (Online), 22 February 06;
Elaine Kurtenbach, ``Environmental Agency Says Disasters Must Be
Reported Within One Hour,'' Associated Press, reprinted in South China
Morning Post (Online), 7 February 06.
\7\ Regulation on the Handling of Public Health Emergencies, arts.
19, 25.
\8\ CECC, 2003 Annual Report, 37; CECC, 2006 Annual Report, 20
September 06, 102.
\9\ Regulation of the People's Republic of China on the Public
Disclosure of Government Information [Zhonghua renmin gongheguo zhengfu
xinxi gongkai tiaoli], issued 5 April 07, art. 1.
\10\ Ibid., arts. 10, 11, 12.
\11\ Ibid., arts. 13, 20, 21, 22, 23, 24.
\12\ Measures on Environmental Information Disclosure (Trial)
[Huanjing xinxi gongkai banfa (shixing)], issued 11 April 07.
\13\ Regulation on Public Disclosure of Government Information,
art. 14; Measures on Environmental Information Disclosure (Trial), art.
12.
\14\ See, e.g., Provisions on the Protection of Secrets in News
Publishing [Xinwen chuban baomi guiding], issued 13 June 92, art. 14:
``Anyone wishing to provide a foreign news publishing organization a
report or publication with contents that relate to the nation's
government, economy, diplomacy, technology or military shall first
apply to this agency or their supervising organ or unit for examination
and approval.'' See also PRC Law on the Protection of State Secrets
[Zhonghua renmin gongheguo baoshou guojia mimi fa], issued 5 September
88, art. 8; Measures for the Implementation of the Law on the
Protection of State Secrets [Zhonghua renmin gongheguo baoshou guojia
mimi fa shishi banfa], issued 25 April 90, art. 4; and Article 1 of the
Explanation of Certain Issues Regarding the Specific Laws to be Used in
Adjudicating Cases of Stealing or Spying to Obtain, or Illegally
Supplying, State Secrets or Intelligence for Foreigners [Guanyu shenli
wei jingwai qiequ, citan, shoumai, feifa tigong guojia mimi, qingbao
anjian juti yingyong falu ruogan wenti de jieshi], issued 20 November
00, which states: ``The term `intelligence' in Article 111 of the
Criminal Law refers to items which involve the security and interests
of the nation, but which are not public or which, according to relevant
regulations, should not be made public.'' See also ``Secrets Protection
Knowledge'' [Baomi zhishi], posted on the Administration for the
Protection of State Secrets of Guangdong province Web site, which
states: `` `Relating to the security and interests of the nation,'
means that, if a secret matter were known by people who do not
currently know it, it would result in various kinds of harm to the
security and interests of the nation.'' In September 2003, the
Guangzhou Daily published a warning to readers that everyone from
Internet users to garbage collectors can run afoul of China's state
secrets legislation. ``If a Nanny Can Disclose State Secrets, Then
Average Citizens Should Raise Their Awareness of Preserving Secrets''
[Baomu jingran xielou guojia jimi baixing yexu tigao baomi yishi],
People's Daily (Online), 5 September 03.
\15\ Regulations on the Specific Scope of State Secrets in
Environmental Protection Work, issued 28 December 04, art. 2; Human
Rights in China (Online), ``State Secrets: China's Legal Labyrinth,''
June 2007, 174.
\16\ Ye Doudou and Duan Hongqing, ``How Wide Is the Door to Chinese
Governments' Information Disclosure,'' Caijing (Online), 2 May 07;
``China Issues Landmark Decree To Encourage Gov't Transparency,''
Xinhua (Online), 24 April 07.
\17\ Human Rights in China, ``State Secrets: China's Legal
Labyrinth,'' 51.
\18\ Committee to Protect Journalists (Online), ``Falling Short, As
the 2008 Olympics Approach, China Falters on Press Freedom,'' August
2007, 17; ``Shanghai Journalist Sues Municipal Authorities for Refusing
Interviews'' [Caifang zao jujue shanghai jizhe qisu shi guihua ju xinxi
bu gongkai], Xinhua (Online), 2 June 06.
\19\ Ibid.
\20\ PRC Emergency Response Law, enacted 30 August 07, art. 53.
\21\ CECC, 2006 Annual Report, 20.
\22\ ``China Adopts Emergency Response Law,'' People's Daily
(Online), 30 August 07.
\23\ PRC Emergency Response Law, art. 54.
\24\ Ibid., art. 65.
\25\ The South China Morning Post quoted one Shanghai journalist as
saying, ``Who gets to define what false information is? It's still up
to the government. They can still do whatever they want. As long as the
system stays the same, I can't imagine any major improvement.'' Ting
Shi, ``Journalists Welcome Revision of Rules on Reporting
Emergencies,'' South China Morning Post (Online), 26 June 07.
\26\ ``Li Changqing Gets Three Years Imprisonment for Reporting
Disease Outbreak,'' CECC Human Rights and Rule of Law Update, February
2006, 15-16.
\27\ PRC Public Security Administration Punishment Law, enacted 28
August 05, art. 25. See, e.g., Yan Lieshan, ``Xin Yanhua's Luck and the
Bad Fortune of the Three Xinyi Netizens'' [Xin Yanhua de jiaoxing he
xinyi sanwangmin de buxing], Southern Metropolitan Daily (Online), 12
July 07; and Zhan Jiang, ``Selectively Taking Citizens' Text Messages
Out of Context Violates Freedom of Communication'' [Suiyi jiequ gongmin
duanxin qinfan tongxin ziyou], Southern Daily (Online), 27 July 07.
\28\ Yu Wei, ``Accused of Spreading Rumors While Participating in
Discussion Over Rainstorm, 23 Year Old Female Jinan Internet User Who
Posted Is Detained'' [Canyu bayou taolun bei zhi sanbu yaoyan jinan 23
sui nuwangyou gentie bei ju], Southern Metropolitan Daily (Online), 25
July 07.
\29\ CECC, 2003 Annual Report, 64.
\30\ Supreme People's Court Several Opinions on Strengthening Open
Adjudication Work of the People's Courts [Zui gao renmin fayuan guanyu
jiaqiang renmin fayuan shenpan gongkai gongzuo de ruogan yijian],
issued 4 June 07, arts. 5, 15.
\31\ Ibid., art. 22.
\32\ Ibid., art. 3.
\33\ ``Supreme People's Court Clarifies `Restricted Area' for
People's Court News Publishing Work'' [Zuigaofayuan minque renminfayuan
xinwen fabu gongzuo ``jinqu''], Xinhua (Online), 13 September 06. For a
discussion of the competing roles that the media and the courts play
for the Party, and the media's influence over China's courts and legal
development, see Benjamin L. Liebman, ``Watchdog or Demagogue? The
Media in the Chinese Legal System,'' 105 Colum. L. Rev. 1, 7 (2005).
\34\ International Covenant on Civil and Political Rights, adopted
by General Assembly resolution 2200A(XXI) of 16 December 66, entry into
force 23 March 76 [hereinafter ICCPR]. China has signed, but has not
yet ratified, the ICCPR. The Chinese government has committed itself to
ratifying, and thus bringing its laws into conformity with, the ICCPR,
and reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly.
Article 19 of the ICCPR states: ``1. Everyone shall have the right
to hold opinions without interference. 2. Everyone shall have the right
to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.''
\35\ Universal Declaration of Human Rights, adopted and proclaimed
by General Assembly resolution 217A(III) of 10 December 48 [hereinafter
UDHR]. Article 19 of the UDHR states: ``Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.''
\36\ PRC Constitution, art. 35. Article 35 of China's Constitution
states: ``Citizens of the People's Republic of China enjoy freedom of
speech, of the press, of assembly, of association, of procession and of
demonstration.''
\37\ This language is found in Article 19 of the ICCPR. Article 29
of the UDHR states the following: ``everyone shall be subject only to
such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.''
\38\ Ashley Esarey, ``Speak No Evil, Mass Media Controls in
Contemporary China,'' Freedom House, February 2006, 3-4.
\39\ Article 11(2) of the Regulations on the Administration of
Publishing states that publishing work units must have a sponsoring
work unit and a managing work unit recognized by the State Council's
publishing administration agency. The ``sponsoring work unit'' must be
a government agency of a relatively high level, and the publishing work
unit must answer to its sponsoring work unit and managing work unit.
Circular Regarding Issuance of the ``Temporary Provisions on the
Functions of the Sponsoring Work Unit and the Managing Work Unit for
Publishing Work Units'' [Guanyu fabu ``Guanyu chuban danwei de zhuban
danwei he zhuguan danwei zhize de zanxing guiding'' de tongzhi], issued
29 June 93, arts. 5-6; Regulations on the Administration of Publishing
[Chuban guanli tiaoli], issued 25 December 01, art. 11(2).
\40\ Measures for the Administration of Journalist Accreditation
Cards [Xinwen jizhezheng guanli banfa], issued 10 January 05; Measures
for the Administration of News Bureaus [Baoshejizhezhan guanli banfa],
issued 10 January 05; Interim Provisions for the Administration of
Those Employed as News Reporters and Editors [Guanyu xinwen caibian
renyuan congye guanli de guiding (shixing)], issued 22 March 05;
Interim Implementation Rules for the Administration of Those Employed
as Radio and Television News Reporters and Editors [Guangdianzongju
yinfa ``guangbo yingshi xinwen caipian renyuan congye guanli de shishi
fangan (shixing) de tongzhi''], issued 1 April 05. GAPP has used its
licensing authority to punish journalists for their reporting. In
September 2006, GAPP revoked the license of Zan Aizong, a journalist
who was detained for one week in August 2006 after he posted reports on
foreign Web sites about detentions of Protestants who were protesting
the destruction of a church in Xiaoshan city, Nanjing province.
``September 17-21, 2006'' [2006 nian 9 yue 17 ri -- 9 yue 21 ri],
Mediainchina.org.cn, 27 September 06. In March 2007, police in the city
of Nanjing reportedly harassed a reporter for the U.S.-based news Web
site Boxun, accusing him of working for an illegal news outlet and
failing to have a journalist license. Committee to Protect Journalists
(Online), ``China Reporter Arrested Following Months of Police
Harassment,'' 4 June 07.
\41\ Liebman, ``Watchdog or Demagogue?,'' 18-20.
\42\ CECC, 2004 Annual Report, 5 October 04, 47; CECC, 2005 Annual
Report, 56-57.
\43\ Provisions on the Protection of Secrets in News Publishing.
For example, in April 2003, two editors at the Xinhua news agency were
fired for publishing a news report about SARS that had been classified
as secret. ``Two Chinese Editors Sacked over Confidential SARS
Document,'' South China Morning Post, 29 April 2003.
\44\ Committee to Protect Journalists, ``Falling Short,'' 25.
\45\ See, e.g., CECC, 2004 Annual Report, 48; and Andrew Batson,
Geoffrey Fowler, and Juying Qin, ``China Magazine Is Pulled,'' Wall
Street Journal (Online), 9 March 07.
\46\ CECC, 2004 Annual Report, 47; CECC, 2005 Annual Report, 56-57.
\47\ ``Hu Jintao Delivers Important Remarks at National Meeting of
Propaganda Department Directors'' [Hu Jintao zai quanguo xuanchuan
buzhang huiyi shang fabiao zhongyao jianghua], Xinhua (Online), 12
January 01.
\48\ ``Party Uses Journalists, Artists, Academics To Promote
`Harmonious Society','' CECC China Human Rights and Rule of Law Update,
December 2006, 10. Following the plenum, top officials such as Li
Changchun, a Politburo member, and Liu Yunshan, a top Party official
and Director of the Central Propaganda Department, told journalists
that their ``foremost duty is to study, publicize, and carry out'' the
spirit of the sixth plenum and the important statements of President Hu
to unify the thoughts of the whole party and the whole nation, and to
be ``loyal to the Party's news work and protect the interests of the
Party and the people.'' The duty of journalists to be caretakers of the
Party's ideology is also embodied in formal regulations. See, e.g., the
Interim Provisions on the Administration of Those Employed as News
Reporters and Editors issued jointly by the General Administration of
Press and Publication, the Central Propaganda Department, and the State
Administration of Radio, Film and Television in 2005, which provides
that reporters and editors must be ``guided by Marxism, Leninism, Mao
Zedong Thought, Deng Xiaoping Theory, and the important ideology of the
`Three Represents', support the leadership of the Chinese Communist
Party, and support the socialist system'' and ``protect the interest of
the Party and the government.'' Interim Provisions on the
Administration of Those Employed as News Reporters and Editors, art. 1.
One Chinese court has recently held that for purposes of China's
criminal law, journalists at state-owned newspapers are state
functionaries. ``Former China Business Times Reporter Meng Huaihu Final
Sentence of 12 Years for Extortion'' [Zhonghua gongshang shibao jizhe
Meng Huaihu zhongshen yi shouhui zui panxing 12 nian], Xinhua (Online),
19 April 07.
\49\ ``Liu Yunshan: Begin Contruction of a Good Ideological and
Public Opinion Atmosphere for the 17th Party Congress'' [Liu Yunshan:
wei shiqi da yingzao lianghao sixiang yulun qifen], Xinhua (Online), 9
July 07; ``Perform Well News Publishing Work, To Create a Positive
Cultural Environment for the 17th Party Congress'' [Zuohao xinwen
chuban gongzuo wei shiqi da zhaokai yingzao lianghao wenhua huanjing],
Xinhua (Online), 16 July 07; Edward Cody, ``Broadcast Media in China
Put On Notice,'' Washington Post (Online), 27 February 07; Cary Huang,
``Party Introduces New Censorship Rule,'' South China Morning Post
(Online), 16 January 07.
\50\ ``China To Show Only `Ethically Inspiring TV Series' in Prime
Time From Next Month,'' People's Daily (Online), 22 January 07.
\51\ Gordon Fairclough, ``Finally Rescued, China's `Slaves' Detail
Their Plight,'' Wall Street Journal (Online), 19 June 07; ``1,340
Rescued from Forced Labor,'' Xinhua (Online), 13 August 07.
\52\ Cary Huang, ``Magazine Censured for Political `Defiance',''
South China Morning Post (Online), 30 November 06. After further
investigation, propaganda officials docked the magazine six points
under a 12-point punishment system imposed in January 2007 (12 points
meaning closure of the magazine) and issued a serious internal warning
to the executive editor. Cary Huang, ``Editor and Magazine Disciplined
by Party,'' South China Morning Post (Online), 26 April 07.
\53\ Kristine Kwok, ``Two Newspaper Staff Suspended for `June 4'
Advert,'' South China Morning Post (Online), 8 June 07.
\54\ Batson, Fowler, and Qin, ``China Magazine Is Pulled.''
\55\ CECC, 2006 Annual Report, 102.
\56\ ``Shanghai's Top Leader Removed Over Scandal Involving Alleged
Misuse of City Pension Funds,'' Associated Press (Online), 25 September
06; James T. Areddy, ``China Warns of Broader Corruption Probe,'' Wall
Street Journal (Online), 27 September 06.
\57\ ``Media Told To Downplay Demise of Party Boss,'' South China
Morning Post (Online), 27 September 06.
\58\ ``Shanghai City Government Press Conferences Come Back Online,
No Mention of Chen Liangyu'' [Shanghai shi zhengfu xinwen fabuhui
chongxin dengchang bu ti Chen Liangyu], Boxun (Online), 4 November 06.
\59\ Keith Bradsher, ``China Tells Little About Illness That Kills
Pigs, Officials Say,'' New York Times (Online), 8 May 07.
\60\ Ibid.
\61\ Richard McGregor, ``750,000 A Year Killed by Chinese
Pollution,'' Financial Times (Online), 2 July 07. The article also said
that the World Bank removed a map showing the areas with the most
deaths because it was too sensitive.
\62\ Ibid.
\63\ ``China Denies Requiring WB to Delete Environmental Data from
Report,'' Xinhua, reprinted in People's Daily (Online), 5 July 07.
\64\ ``Censors Clamp Down on Food Safety Reports,'' South China
Morning Post (Online), 31 July 07.
\65\ For example, in March 2007, State Council Information Office
(SCIO) Director Cai Wu said that ``leaders should not be afraid of
reporters.'' ``Cai Wu: Some Leaders Fear Facing Reporters Because They
Worry They Will Lose Their Official Posts'' [Cai Wu: moxie lingdao pa
jian jizhe shi danxin diudiao ziji de wushamao], Chinanews.com, 9 March
07. In January 2007, SCIO's vice-minister, speaking about foreign
journalists, said that the Chinese government was moving away from its
practice of ``managing the media'' and was preparing to ``serve'' and
not shy away from reporters. ``China Gov'ts `Serve Media, Not Manage
Them,' '' China Daily (Online), 4 January 07.
\66\ ``Official: Transparency Key to Public Faith,'' China Daily
(Online), 29 July 07.
\67\ ``Anhui Requires Journalists To Write `Positive' Reports for
Promotion,'' CECC China Human Rights and Rule of Law Update, December
2006, 18-19
\68\ ``Linking Professional Evaluations to Positive Reporting Is
Absurd'' [Zhicheng pingding yu zhengmian baodao guagou tai huangtang],
Southern Metropolitan Daily (Online), 27 October 06.
\69\ ``Anhui Requires Journalists To Write `Positive' Reports for
Promotion,'' CECC China Human Rights and Rule of Law Update, December
2006, 18-19
\70\ In 2001, when the Chinese government was bidding to host the
2008 Summer Olympic Games, Wang Wei, then the Secretary-General of the
Beijing Bid Committee, said that the government would give the news
media ``complete freedom'' to report on China and that the guarantee
had been made in China's bid documents. ``Journalists To Write Whatever
They Like if Beijing Holds 2008 Games,'' China Daily (Online), 12 July
01.
\71\ Regulations on Reporting Activities in China by Foreign
Journalists During the Beijing Olympic Games and the Preparatory Period
[Beijing auyunhui ji qi choubei qijian waiguo jizhe zai hua caifang
guiding], issued 1 December 06.
\72\ The regulations expire one month after Beijing hosts the 13th
Paralympic Games. The Paralympic Games follow the 2008 Summer Olympics
Games, which run from August 8 to August 24, 2008. ``Paralympic Games
Schedules Set,'' China Daily (Online), 22 May 06.
\73\ In a survey of 163 journalists conducted by the Foreign
Correspondents Club of China and released in August 2007, 43 percent of
the respondents said that China's reporting environment had improved,
although 95 percent said reporting conditions still did not meet what
they considered to be international standards. Respondents reported 157
incidents of interference, including 57 instances of intimidation of
local citizens who spoke with foreign reporters. Foreign Correspondents
Club of China, ``Foreign Correspondents: China Yet To Fulfill Olympic
Pledge of Free Media Coverage, Harassment Still Common,'' 1 August 07.
A report by Human Rights Watch also found that government and state
security officials, as well as unidentifiable thugs, were harassing,
intimidating, and detaining foreign journalists, but that some foreign
reporters also said that the new rules ``significantly widened access
to sources and topics previously taboo, such as access to certain
prominent political dissidents and to villages with public health
emergencies.'' Human Rights Watch (Online), ``Beijing 2008 China's
Olympian Human Rights Challenges,'' 10 August 07.
\74\ Foreign Correspondents Club of China, ``China Yet To Fulfill
Olympic Pledge of Free Media Coverage.''
\75\ Ibid. In May 2007, a foreign ministry official reportedly
summoned two foreign journalists to the ministry to reprimand them for
stories they had written about the TAR. Reporters Without Borders
(Online), ``Two Foreign Reporters Summoned and Warned About Tibet
Stories,'' 25 May 07. The new regulations do not contain any exception
or carve-out for Tibet or any other region of China. Foreign ministry
officials, however, have indicated orally that existing regulations
applicable to Tibet, such as special permit requirements, remain in
effect. In a February 13, 2007, press conference Foreign Ministry
Spokeswoman Jiang Yu said the following about the new rule's
applicability to Tibet: ``The new Regulations should be abided by
generally when foreign journalists conduct reporting activities in
Tibet and elsewhere. In the meantime, due to restraints in natural
conditions and reception capabilities, Tibetan local authorities have
some regulations for foreigners' access there, which should be abided
by. Please contact the local foreign affairs office for conducting
reporting activities in Tibet.'' Ministry of Foreign Affairs (Online),
``Foreign Ministry Spokeswoman Jiang Yu's Regular Press Conference on
13 February 2007,'' 14 February 07 (English translation); Ministry of
Foreign Affairs (Online), ``Foreign Ministry Spokeswoman Jiang Yu's
Regular Press Conference on 13 February 2007'' [2007 nian 2 yue 13 ri
waijiaobu fayanren Jiang Yu juxing liexing jizhehui], 13 February 07
(Chinese).
\76\ Human Rights Watch, ``Beijing 2008 China's Olympian Human
Rights Challenges.''
\77\ In March 2007, local officials in Hunan province detained two
BBC journalists covering a riot, telling them the rules apply only to
Olympics coverage. Reporters Without Borders (Online), ``Disturbing
Lapses in Application of New Rules for Foreign Media,'' 22 March 07.
Foreign ministry and State Council officials have publicly stated that
the rules cover not only the Olympics but also politics, economy,
society, and culture in China. ``Journalists Promised Wide Access in
2008,'' China Daily (Online), 2 December 06; ``Foreign Journalists
`Welcome in China','' China Daily (Online), 29 December 06. The
``Service Guide for Overseas Media Coverage of the Beijing Olympic
Games and the Preparatory Period'' issued by the Beijing Organizing
Committee for the Games of the XXIX Olympiad state that under the rules
``[f]oreign journalists can carry out reporting activities not only on
the Beijing Olympic Games and the preparatory period, but also on
politics, economy, society, and culture of China.'' Beijing Organizing
Committee for the Games of the XXIX Olympiad, ``Service Guide for
Overseas Media Coverage of the Beijing Olympic Games and the
Preparatory Period,'' 3.
\78\ Christopher Bodeen, ``China Media Seen as Corrupt, But Experts
Blame Communist Controls for Skewing System,'' Associated Press
(Online), 31 January 07.
\79\ ``Fraudster Who Impersonated People's Daily Deputy Editor-in-
Chief Liu Yonghong Sentenced to Life'' [Maochong renmin ribao fu
zongbianji zha pian zhe Liu Yonghong bei pan wuqi tuxing], People's
Daily (Online), 9 May 07.
\80\ Edward Cody, ``Blackmailing By Journalists in China Seen as
`Frequent','' Washington Post (Online), 25 January 07; Winny Wang,
``China To Improve Supervision of Reporters,'' Shanghai Daily (Online),
9 July 07.
\81\ The Commission noted in its 2004 Annual Report that the media
in China often focus on the ethical problems within its own industry.
CECC, 2004 Annual Report, 48.
\82\ Notice Regarding Further Improving Standards for Supervision
of Press Journalist's Stations [Guanyu jin yibu guifan baoshe jizhezhan
guanli de tongzhi], issued 18 March 07.
\83\ ``China Targets `False News' Ahead of Party's Congress,''
Associated Press (Online), 16 August 07; ``Special National Operation
Launched To Resolutely Rid News Publishing of the `Four Dangers'''
[Quanguo kaizhan zhuanxiang xingdong jianjue qingchu xinwen chuban ``si
hai''], People's Daily (Online), 15 August 07.
\84\ ``Hu Jintao: Increase the Building and Administration of
Internet Culture with a Spirit of Innovation'' [Hu Jintao: yi chuangxin
de jingshen jiqiang wangluo wenhua jianshe he guanli], Xinhua (Online),
24 January 07; ``Hu Asks Officials To Better Cope With Internet,''
Xinhua (Online), 24 January 07.
\85\ China Internet Network Information Center, 20th Statistical
Survey on Internet Development in China, 18 July 07.
\86\ ``Infocom Is `Vital' for China,'' Xinhua (Online), 27 April
07.
\87\ China Internet Network Information Center, 11th Statistical
Survey on Internet Development in China, 15 January 03; China Internet
Network Information Center, 20th Statistical Survey.
\88\ ``China's Internet Conundrum,'' Podcast with Tim Wu, CNET
News.com (Online), 1 June 07.
\89\ ``Hu Jintao: Increase the Building and Administration of
Internet Culture with a Spirit of Innovation,'' Xinhua. In his January
2007 speech, President Hu Jintao also said it was important to
``strengthen the battlefield position over ideology and public opinion
on the Internet.''
\90\ ``Build Up An Online Culture, Solidify Our Position Online''
[Jianshe wangluo wenhua gonggu wangshang zhendi], Guangming Daily,
reprinted in Xinhua (Online), 19 June 07.
\91\ This language is found in Article 19 of the ICCPR. Article 29
of the UDHR states the following: ``everyone shall be subject only to
such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.''
\92\ Ariana Eunjung Cha, ``In China, Stern Treatment for Young
Internet `Addicts','' Washington Post (Online), 22 February 07; ``New
Measures Come Out: Excessive Senders of Junk Mail To Be Recorded on
`Black List''' [Xin cuoshi chutai lanfa lese youjian jiang jiru ``hei
mingdan''], Xinhua (Online), 1 March 06; ``Authorities Crack Down on
Internet Porn,'' Agence France-Press, reprinted in South China Morning
Post (Online), 15 August 07; ``China's News Websites Vow To Clean Up
the Internet,'' Xinhua, reprinted in China Daily (Online), 18 May 07.
\93\ All commercial Web sites must obtain a government license.
Measures for the Administration of Internet Information Services
[Hulianwang xinxi fuwu guanli banfa], issued 20 September 00. All non-
commercial Web site operators must register. Registration
Administration Measures for Non-Commercial Internet Information
Services [Fei jingyingxing hulianwang xinxi fuwu bei'an guanli banfa],
issued 28 January 05. Because the MII's registration system gives the
government discretion to reject an application based on content (i.e.,
whether the Web site operator intends to post ``news,'' and if so,
whether it is authorized to do so), it is qualitatively different from
registration which all Web site operators must undertake with a domain
registrar, and constitutes a de facto licensing scheme.
\94\ Peter Ford, ``Why China Shut Down 18,401 Websites,'' Christian
Science Monitor (Online), 25 September 07; ``MII Reports China's
Government Has Met its Goals in Private Web Site Crackdown,'' CECC
Human Rights and Rule of Law Update, September 2005, 5; ``Ministry of
Information Industry: Web Sites That Fail to Register May Be Shut
Down,'' CECC Human Rights and Rule of Law Update, June 2005, 3.
\95\ Ford, ``Why China Shut Down 18,401 Websites.''
\96\ ``Government Shuts Down Web Site; China Scholars and Activists
Respond,'' CECC China Human Rights and Rule of Law Update, September
2006, 12-13; ``Government Agencies Issue New Regulations Restricting
News Reporting on the Internet,'' CECC China Human Rights and Rule of
Law Update, November 2005, 4; Provisions on the Administration of
Internet News Information Services [Hulianwang xinwen xinxi fuwu guanli
guiding], issued 25 September 05.
\97\ OpenNet Initiative (Online), ``OpenNet Initiative: Bulletin
011-Analysis of China's Non-Commercial Web Site Registration
Regulation,'' 22 February 06. The Opennet Initiative comprises
researchers at the Citizen Lab at the Munk Centre for International
Studies, University of Toronto, Berkman Center for Internet & Society
at Harvard Law School, the Advanced Network Research Group at the
Cambridge Security Programme, University of Cambridge, and the Oxford
Internet Institute, Oxford University.
\98\ ``GAPP Drafts Supervision Regulation, Celebrity Magazines To
Be Supervised'' [Xinwen chuban zongshu ni qicao guanli tiaoli mingren
zazhi jiang shou jianguan], Shanghai Youth Daily, reprinted in Xinhua
(Online), 23 April 07.
\99\ OpenNet Initiative (Online), ``Internet Filtering in China in
2004-2005: A Country Study,'' 14 April 05; China Internet Network
Information Center, 20th Statistical Survey.
\100\ Steven Schwankert, ``English Wikipedia Unblocked in China,''
IDG News Service (Online), 18 June 07; Simon Burns, ``Wikipedia Partly
Unblocked in China,'' VNUnet (Online), 18 June 07.
\101\ Juan Carlos Perez, ``Flickr Investigates Blocking of Images
in China,'' IDG News Service (Online), 11 June 07.
\102\ ``Clean Up Cyberspace,'' China Daily, reprinted in Xinhua
(Online), 19 April 07.
\103\ ``China's Law Enforcement Internet Database Set for
Completion This Year,'' Xinhua, reprinted in People's Daily (Online),
28 May 07.
\104\ Ibid.
\105\ CECC, 2006 Annual Report, 35.
\106\ Measures for the Administration of Internet Information
Services, arts. 14, 15, 16.
\107\ ``Lawyer Pu Zhiqiang Sees 2 Blogs Closed Within 10 Days''
[Lushi Pu Zhiqiang shi tian nei liangge boke bei guan], Radio Free Asia
(Online), 21 February 07.
\108\ Regulations on the Administration of Business Sites of
Internet Access Services [Hulianwang shangwang fuwu yingye changsuo
guanli tiaoli], issued 29 September 02, arts. 19, 23; China Internet
Network Information Center, 20th Statistical Survey.
\109\ Bloggers are never truly anonymous because they can be traced
back to an IP address. Jason Leow, ``Why China Relaxed Blogger
Crackdown, Registration Plan Was Dropped In Face of Tech-Industry
Protests,'' Wall Street Journal (Online), 17 May 07.
\110\ See, e.g., ``Real Name Registration in Full Bloom, `Lilac'
Withers and Falls: To Post on Harbin Institute of Technology's BBS
Requires Information About Full Name and School Department''
[Shimingzhi shengkai zidingxiang diaoxie hagongda BBS fatie xuyao
xingming he yuanxi xinxi], Southern Metropolitan Daily, 13 July 07.
\111\ Jason Leow, ``China Eases Real-Name Blog Effort,'' Wall
Street Journal (Online), 23 May 07.
\112\ The Internet in China-A Tool of Freedom or Suppression?,
Joint Hearing of the Subcommittee on Africa, Global Human Rights, and
International Operations, and the Subcommittee on Asia and the Pacific,
Committee on International Relations, U.S. House of Representatives, 15
February 06, Testimony of Michael Callahan, Senior Vice President and
General Counsel, Yahoo! Inc.; ``Congressional Committee to Investigate
Disparity Between Documents and Hearing Testimony by Yahoo!,'' House
Foreign Affairs Committee (Online), 3 August 07.
\113\ Internet Society of China (Online), ``Internet Society of
China Formally Issues `Blogging Services Self-Discipline Pledge' To
Promote Orderly Development of Blogging Services'' [Zhongguo hulianwang
xiehui zhengshi fabu ``boke fuwu zilu gongyue,'' cujin boke fuwu youxu
fazhan], 21 August 07.
\114\ Reporters Without Borders (Online), ``Yahoo! and MSN Comment
on `Self-Disciplinary Pledge','' 28 August 07.
\115\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, art. 105.
\116\ UN Working Group on Arbitrary Detention, Report of the
Working Group on Arbitrary Detention, Mission to China, Addendum, 29
December 04, para. 78.
\117\ ``Authorities Sentence Guo Qizhen to Four Years in Prison for
Online Essays,'' CECC China Human Rights and Rule of Law Update,
November 2006, 5-6.
\118\ ``Shandong Court Sentences Internet Essayist Li Jianping to
Two Years' Imprisonment,'' CECC Human Rights and Rule of Law Update,
December 2006, 12-13.
\119\ ``Well-Known Online Article Writer Zhang Jianhong Sentenced
for Inciting Subversion of State Power'' [Wangshang zhuanwen da Zhang
Jianhong shandong dianfu guojia zhengquan an xuanpan], Xinhua,
reprinted in Phoenix Television (Online), 20 March 07.
\120\ Independent Chinese Pen Center (Online), ``ICPC Statement
Regarding Protest of Member Yan Zhengxue's Sentence'' [Duli zhongwen
bihui guanyu huiyuan Yan Zhengxue bei panxin de kangyi shengming],'' 19
April 07.
\121\ ``China Jails Internet Writer for Subversion, Disbars
Lawyer,'' Reuters (Online), 16 August 07.
\122\ Independent Chinese Pen Center, ``ICPC Statement Regarding
Protest of Member Yan Zhengxue's Sentence''; ``Overseas Service Center
of Chinese Democracy Party Calls for Attention to Case of China
Democracy Party's Chen Shuqing and Li Hong (Zhang Jianghong)''
[Zhongguo minzhu dang haiwai fuwu zhongxin huyu guanzhu Chen Shuqing,
Li Hong (Zhang Jianhong) zhongguo minzhu dang yi an], Radio Free Asia
(Online), 19 September 06.
\123\ Gao Shan, ``Zhejiang China Democracy Party Member Chi Jianwei
Sentenced to 3 Years in Prison'' [Zhejiang sheng zhongguo minzhu dang
chengyuan chi jianwei bei pan xing 3 nian tuxing], Radio Free Asia
(Online), 27 March 07.
\124\ Chinese Human Rights Defenders (Online), ``Pro-Democracy
Activist Detained for `Inciting Subversion' Government Must End
Criminalization of Free Speech,'' 25 August 07.
\125\ ``Lawyer for Journalists and Cyber-Dissidents Loses
License,'' Reporters Without Borders (Online), 6 August 07.
\126\ ``Authorities Arrest and Imprison Writers for Online Essays
Criticizing Government,'' CECC China Human Rights and Rule of Law
Update, November 2006, 4-5.
\127\ Chinese Human Rights Defenders (Online), ``Yang Chunlin
Accused of `Subversion Against the State Power','' 4 September 07;
``Refused Meeting With Lawyer, Yang Chunlin's Sister Reveals Police
Intimidation'' [Ju lushi huijian Yang Chunlin mei jie jingfang konghe],
Epoch Times, 17 September 07.
\128\ See, e.g., ``Authorities Sentence Guo Qizhen to Four Years in
Prison for Online Essays,'' CECC China Human Rights and Rule of Law
Update, November 2006, 5-6 and ``Shandong Court Sentences Internet
Essayist Li Jianping to Two Years' Imprisonment,'' CECC Human Rights
and Rule of Law Update, December 2006, 12-13.
\129\ China Information Center (Online), ``Administrative Penalty
Decision for Zhang Jianping'' [Xingzheng chufa jueding shu], 17 April
07. In punishing Zhang, officials relied on the Measures for the
Administration of Security Protection of Computer Information Networks
with International Interconnections, which prohibit individuals from
using the Internet to look up ``information that incites the subversion
of state power and the overthrow of the socialist political system.''
Measures for the Administration of Security Protection of Computer
Information Networks with International Interconnections [Jisuanji
xinxi wangluo guoji lianwang anquan baohu guanli banfa], 11 December
97. Zhang filed an administrative appeal with the Changzhou PSB. The
PSB denied the appeal on June 6 and noted that there was evidence that
Zhang had browsed certain hostile foreign Web sites, and used
censorship circumvention tactics. ``Changzhou Public Security
Administrative Reconsideration Decision Calls Tianwang A Hostile
Foreign Web Site'' [Changzhou gongan xingzheng fuyi cheng tianwang
jingwai didui wangzhan], 64tianwang.com, 6 June 07.
\130\ Xiao Qiang, ``China Censors Internet Users With Site Bans,
Cartoon Cop Spies,'' San Francisco Chronicle (Online), 23 September 07.
\131\ China Internet Network Information Center, 20th Statistical
Survey.
\132\ ``China Eases Off Proposal for Real-Name Registration,''
Xinhua (Online), 22 May 07.
\133\ Access to Information in the People's Republic of China,
Hearing of the U.S.-China Economic and Security Review Commission, 31
July 07, Written Statement Submitted by Ashley Esarey, Luce Fellow of
Asian Studies and Assistant Professor of Comparative Politics,
Middlebury College.
\134\ Edward Cody, ``China's Muckrakers for Hire Deliver Exposes
With Impact,'' Washington Post (Online), 2 May 07; Edward Cody, ``Text
Messages Giving Voice to Chinese,'' Washington Post (Online), 28 June
07. Because they post on the Internet, however, such journalists are
still subject to China's censorship of that medium.
\135\ Clay Chandler, ``Is China Emerging from a Media Ice Age,''
Fortune (Online), 1 June 07.
\136\ ``500 Mln Cellphone Users Mark China's 20th Anniversary of
Mobile,'' Xinhua, reprinted in People's Daily (Online), 20 July 07.
\137\ China Mobile Limited (Online), visited on September 27, 2007.
\138\ Mitchell Landsberg, ``Chinese Activists Turn to Cellphones,''
Los Angeles Times (Online), 1 June 07.
\139\ Louisa Lim, ``China To Censor Text Message,'' BBC (Online), 2
July 04. Until recently, pre-paid phones could be purchased
anonymously. In 2005, in an apparent move to curb fraud and spamming,
mostly committed via text message, the government began to require real
name registration of cell phones. ``China Cracking Down on Cell Phone
Fraud, Spam,'' Reuters (Online), 28 December 05. This was aimed mostly
at pre-paid phones, which in 2006 represented more than half of all
mobile phones. It is unclear how widely enforced this requirement is.
\140\ ``Xiamen Suspends Controversial Chemical Project,'' Xinhua
(Online), 30 May 07.
\141\ Ibid.
\142\ Cody, ``Text Messages Giving Voice to Chinese.''
\143\ Landsberg, ``Chinese Activists Turn to Cellphones.''
\144\ Cody, ``Text Messages Giving Voice to Chinese.''
\145\ ``Xiamen Suspends Controversial Chemical Project,'' Xinhua.
\146\ Many around China followed the protests in real time through
written reports and cell phone photos posted on blogs. Some sites were
blocked but many of the reports had already been forwarded to other
sites around China before censors could react. Cody, ``Text Messages
Giving Voice to Chinese.''
\147\ Zhu Hongjun, ``She Started the Storm Over the Shanxi Illegal
Brick Kilns'' [Shanxi hei zhuanyao fengbao bei ta dianran], Southern
Weekend (Online), 12 July 07.
\148\ Fairclough, ``Finally Rescued, China's `Slaves' Detail Their
Plight.''
\149\ ``China's Internet Justice,'' Wall Street Journal (Online),
21 June 07; Josephine Ma, ``Beijing's Damage Control Moves Behind the
Scenes,'' South China Morning Post (Online), 10 July 07; Josephine Ma,
``Top Official Plays Down Scale of Kiln Slavery,'' South China Morning
Post (Online), 14 August 07.
\150\ Howard French, ``In China, Fight Over Development Creates a
Star,'' New York Times (Online), 26 March 07.
\151\ ``Blogger Also Comes to Report on the `Awesome Nail House'''
[Boke ye lai baodao ``zui niu dingzi hu''], Southern Metropolitan Daily
(Online), 30 March 07.
\152\ Ma, ``Beijing's Damage Control Moves Behind the Scenes'';
Geoffrey York, ``The Coolest Nail House in History,'' Globe and Mail
(Online), 29 March 07.
\153\ ``Draft Xiamen Regulation of Online Forums Abolishes
Anonymous Comment Function'' [Xiamen ni guiding luntan quxiao niming
fatie gongneng], Taihai Wang, reprinted in Sina.com, 4 July 07.
\154\ Regulations on the Administration of Publishing.
\155\ Although no absolute international standard prescribes what
constitutes freedom of the press, international human rights standards
set forth a minimum prerequisite: no legal system can be said to
respect freedom of the press if it subjects the print media to any
prior restraint through a licensing scheme. In 2003, the UN Special
Rapporteur on Freedom of Opinion and Expression, the Organization for
Security and Cooperation in Europe (OSCE) Representative on Freedom of
the Media, and the Organization of American States (OAS) Special
Rapporteur on Freedom of Expression issued a joint declaration saying
that licensing schemes are unnecessary and subject to abuse. The UN
Human Rights Committee ruled in March 2000, that a licensing scheme in
Belarus similar to China's violated Article 19 because the government
of Belarus had failed to show how the licensing requirements were
necessary to protect any of the legitimate purposes set forth in
Article 19. The Commission has recommended in its annual reports that
China eliminate this prior restraint on publishing.
\156\ Notice Regarding Prohibiting the Transmission of Harmful
Information and Further Regulating Publishing Order [Guanyu jinzhi
zhuanbo youhai xinxi jinyibu guifan chuban zhixu de tongzhi], issued 5
November 01: ``No one may establish an entity whose primary purpose is
to transmit news information and engage in other news publishing
activities without permission from the press and publication
administration agency.''
\157\ Circular Regarding Issuance of the ``Temporary Provisions on
the Functions of the Sponsoring Work Unit and the Managing Work Unit
for Publishing Work Units'', arts. 5-6; Regulations on the
Administration of Publishing, art. 11(2).
\158\ Regulations on the Administration of Publishing, art. 29.
\159\ Guangdong Press and Publication Administration (Online),
``Responsible Person at the General Administration of Press and
Publication Book Office Reports on the Previous Year's National Book
Publishing Administration Work'' [Zongshu tushusi fuzeren tongbao
qunian quanguo tushuchuban guanli gongzuo], 24 February 05 (saying that
authorities should use the opinions provided when screening the
selection of topics to determine the distribution of book numbers,
because this ``reduces the risks relating to orientation'').
\160\ ``Wen Jiabao: Pushing Forward Political Reform, Strengthening
People's Supervision of the Government'' [Wen Jiabao: tuijin zhengzhi
tizhi gaige jiaqiang renmin zhengfu de jiandu], China Court Network
(Online), 16 March 07. Premier Wen also said that more public
supervision of the government was needed.
\161\ ``China's TV Watchdog Vows To Fight Corruption in TV Drama
Censorship,'' Xinhua, reprinted in People's Daily (Online), 21 June 07.
\162\ The move was intended to improve the quality of talent and
combat commercially driven ``talent shows,'' but it also increases the
government's control over artists and entertainers. ``If You Want To Be
a Music or Movie Star, You'll Need Certification'' [Yao dang gexing
yingxing xu xian chi zheng shang gang], Beijing News (Online), 19 April
07.
\163\ Hebei Administration of Press and Publication (Online),
``GAPP Director Long Xinmin Comes to Our Province To Inspect Guidance
Work'' [Guojia xinwen chuban zongshu shuzhang Long Xinmin dao wo sheng
diaoyan zhidao gongzuo], 15 October 06.
\164\ ``Party Uses Journalists, Artists, Academics To Promote
`Harmonious Society','' CECC China Human Rights and Rule of Law Update,
December 2006, 10.
\165\ ``Long Xinmin: Publish Large Volume of Outstanding
Publications To Serve Readers and as Favor to Masses'' [Long Xinmin:
chuban dapi youxiu chuban wu fuwu duzhe hui ji qunzhong], People's
Daily (Online), 28 March 07.
\166\ ``Public Security Organs Capture 590 Million Illegal
Publications of All Kinds Over Five Years'' [Gongan jiguan 5 nian
shoujiao gelei feifa chubanwu 5.9 yi jian], Xinhua (Online), 29 March
07.
\167\ ``100 Day Anti-Piracy Action: 368 Business Licenses
Rescinded'' [Fan daoban bairi xingdong: 368 jia danwei jingying xuke
zheng bei diaoxiao], People's Daily (Online), 17 September 06.
\168\ Ibid. Li Baozhong, head of GAPP's Market Supervision
Department, said that ``compared to pornographic publications, the harm
from these kinds of illegal news and economic publications is even
greater. Lawbreakers follow their own prerogatives to edit and publish
these publications, severely deviating from the correct news
orientation.'' General Administration on Press and Publication
(Online), ``Illegal Periodical `China New Observer' Investigated and
Prosecuted'' [Feifa qikan ``zhongguo xin guancha'' bei chachu], 8 May
07.
\169\ General Administration on Press and Publication (Online),
``Nationwide `Sweep Away Pornography, Strike Down Illegal Publications'
Method: Three Major Points to Implement, Maintaining High Posture''
[Quanguo ``saohuang dafei''ban: shishi san da zhongdian baochi gaoya
taishi], 27 February 07.
\170\ ``In the First 3 Months of the Year, 36 Million Pieces of
Illegal Publications of All Kinds Were Confiscated'' [Zhongguo jinnian
qian 3 ge yue shoujiao gelei feifa chubanwu 3600 duo wan jian], Xinhua
(Online), 14 April 07.
\171\ ``Guangzhou College Students Self-Publish Newspaper and
Magazine: Legality In Question'' [Guangzhou daxuesheng zi ban baozhi
zazhi hefaxing shou zhiyi], People's Daily (Online), 20 June 07.
\172\ Ibid.
\173\ ``Eight Books Banned in Crackdown on Dissent,'' South China
Morning Post (Online), 19 January 07.
\174\ ``GAPP Director Clarifies That Regarding Reported Banning of
`Past Stories of Peking Opera Stars' and Other Books: We Never Banned
Even One Book'' [Zhongguo xinwen chuban zongshu chengqing ``lingren
wangshi deng shu bei jin'': women yi ben shu dou mei chajin],
Zaobao.com, 1 February 07; ``Eight Books Banned in Crackdown On
Dissent,'' South China Morning Post.
\175\ ``GAPP: Investigated and Found No Book Ban, Zhang Yihe
Counters That Officials Don't Understand When To Admit Error''
[Chubanzongshu: you chachu wu jin shu Zhang Yihe bochi guanyuan bu dong
ren cuo], Ming Pao (Online), 9 February 07; ``GAPP Director Clarifies
That Regarding Reported Banning of `Past Stories of Peking Opera Stars'
and Other Books: We Never Banned Even One Book,'' Zaobao.com.
\176\ ``Publishers Confirm Being Punished for Printing
Controversial Books'' [Chubanshe zhengshi bei fa], Ming Pao (Online), 2
February 07.
\177\ This year is the 50th anniversary of the start of the anti-
rightist movement, a purge of intellectuals that followed the Hundred
Flowers Campaign's brief tolerance of dissent. Propaganda officials
have reportedly ordered China's media to limit coverage of this topic.
Vivian Wu, ``Court Reject Author's Plea on Ban,'' South China Morning
Post, 27 April 07.
\178\ ``China Keeps Its Critics At Home While Promising Greater
Freedom for Foreign Media,'' Associated Press (Online), 5 February 07.
\179\ CECC, 2005 Annual Report, 11 October 05, 62; Reporters
Without Borders (Online), ``Journalist Faces Possible Life Sentence for
Posting Tiananmen Document on Website,'' 4 February 05; Keith Bradsher,
``China Announces Media Crackdown,'' New York Times (Online), 15 August
07.
\180\ Yahoo!'s general counsel testified at a congressional hearing
that in October 2005 Yahoo merged Yahoo! China with Alibaba.com, a
Chinese company. Yahoo! maintained a large equity stake but no longer
has day-to-day operation control over Yahoo! China. The Internet in
China-A Tool of Freedom or Suppression?, Testimony of Michael Callahan.
\181\ Dui Hua Foundation (Online), ``Police Document Sheds
Additional Light on Shi Tao Case,'' 25 July 07; ``Regarding Court
Decisions and Security Bureau Documents for Shi Tao, Wang Xiaoning''
[Guanyu Shi Tao, Wang Xiaoning de zhongguo fayuan panjue he anquanju
wenjian], Boxun (Online), 23 July 07; Reporters Without Borders
(Online), ``Information Supplied by Yahoo! Helped Journalist Shi Tao
Get 10 Years in Prison,'' 6 September 05. The Internet in China-A Tool
of Freedom or Suppression?, Testimony of Michael Callahan;
``Congressional Committee to Investigate Disparity Between Documents
and Hearing Testimony by Yahoo!,'' House Foreign Affairs Committee
(Online), 3 August 07; Stephanie Kirchgaessner and Richard Waters,
``Yahoo Faces Scrutiny in China Case,'' Financial Times (Online), 7
August 07. In May 2007, Shi Tao also joined a lawsuit against Yahoo!
filed with the U.S. District Court for the Northern District of
California, alleging, among other things, that the company had aided
and abetted the commission of international human rights violations.
See Amended Complaint for Tort Damages, Xianing et al v. Yahoo! Inc.,
et al., U.S. District Court Northern District California, Oakland
Division, 29 May 07.
\182\ Jim Yardley, ``China Releases Jailed New York Times
Employee,'' New York Times (Online), 15 September 07.
\183\ The Beijing High People's Court upheld the sentence in
December 2006. ``Beijing Court Rejects Zhao Yan's Appeal, Affirms
Three-Year Sentence,'' CECC Human Rights and Rule of Law Update,
December 2006, 3-4.
\184\ Reporters Without Borders, ``Journalist Gao Qinrong Released
Five Years Early,'' 11 December 06. In August 1999, a court in Shanxi
province sentenced Gao for accepting bribes, fraud, soliciting
prostitutes. ``After Anti-Corruption Journalists Speaks the Truth''
[Fan fu jizhe jiangle zhenhua yihou], Southern Weekend (Online), 12
December 02. Gao's reporting exposed a sham irrigation project in
Yuncheng in 1998. ``Gao Qinrong,'' PEN Canada (Online), December 2006.
Investigative reports by several Chinese news media found that
authorities in Yuncheng detained Gao in the absence of reliable
evidence, started building a criminal case against him only after he
was detained, and convicted him on the basis of insufficient evidence.
``After Anti-Corruption Journalists Speaks the Truth'' [Fan fu jizhe
jiangle zhenhua yihou], Southern Weekend (Online), 12 December 02; ``To
Only Have Right To Interview Is Not Enough'' [Jin you caifangquan shi
bugou de], Legal Daily (Online), 14 May 01.
\185\ Dui Hua Foundation, ``Nine-Month Sentence Reduction Confirmed
for Xu Zerong,'' 26 September 06.
Notes to Section II--Freedom of Religion
\1\ CECC, 2004 Annual Report, 5 October 2004, 34, 36-37.
\2\ CECC, 2006 Annual Report, 20 September 2006, 93.
\3\ CECC, 2004 Annual Report, 39; CECC, 2005 Annual Report, 11
October 05, 49; CECC, 2006 Annual Report, 86-87.
\4\ See, e.g., CECC, 2005 Annual Report, 52; CECC, 2006 Annual
Report, 91.
\5\ See discussion infra and in Section IV, ``Tibet,'' for more
information on religion-related legislative developments in Tibetan
areas of China.
\6\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, International Religious Freedom Report--2006, China (includes
Tibet, Hong Kong, and Macau), 15 September 06. See discussion infra for
more information on closures of Buddhist and Daoist temples.
\7\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, International Religious Freedom Report--2007, China (includes
Tibet, Hong Kong, and Macau), 14 September 07. The International
Religious Freedom Act mandates that the ``Country of Particular
Concern'' designation be made for countries that ``engaged in or
tolerated particularly severe violations of religious freedom,'' and
sets out possible courses of action, including sanctions, toward these
countries. See International Religious Freedom Act of 1998, 22 U.S.C.
6401 et seq., 6442(b)(1)(A), 6442 (c), 6445. In 2006, John V. Hanford
III, Ambassador at Large for International Religious Freedom, noted
that the climate for religious freedom had improved in recent decades
but that ``a number of setback[s]'' have taken place in the past two to
three years. Bureau of Democracy, Human Rights, and Labor, U.S.
Department of State, On-the-Record Briefing on the Release of the
Department of State's Annual Report on International Religious Freedom,
15 September 06.
\8\ See, e.g., PRC Constitution, art. 36; Regulation on Religious
Affairs (RRA) [Zongjiao shiwu tiaoli], issued 30 November 04, art. 2;
PRC Regional Ethnic Autonomy Law (REAL), enacted 31 May 84, amended 28
February 01, art. 11.
\9\ See, e.g., the Universal Declaration of Human Rights (UDHR),
adopted and proclaimed by General Assembly resolution 217A (III) of 10
December 48, art. 18.
\10\ See, e.g., PRC Constitution, art. 36; RRA, art. 3; REAL, art.
11.
\11\ Registration requirements to form a religious organization and
establish a venue for religious activities are found in RRA, art. 6 and
art. 13-15. See also Measures on the Examination, Approval, and
Registration of Venues for Religious Activity [Zongjiao huodong
changsuo sheli shenpi he dengji banfa], issued 21 April 05.
\12\ See discussion on religious speech, infra, as well as ``Prior
Restraints on Religious Publishing in China'' in the CECC Virtual
Academy for more information.
\13\ See discussions on citizens' freedom to interact with foreign
co-religionists, infra.
\14\ See the discussion on children, infra.
\15\ ``Head of Religious Association: Religious Adherents Not
Arrested Due to Their Faith,'' CECC Virtual Academy (Online), 26 June
06.
\16\ See, e.g., UDHR, art. 18; International Covenant on Civil and
Political Rights (ICCPR), adopted by General Assembly resolution 2200A
(XXI) of 16 December 66, entry into force 23 March 76, art. 18; the
International Covenant on Economic, Social, and Cultural Rights
(ICESCR) adopted by General Assembly resolution 2200A (XXI) of 16
December 66, entry into force 3 January 76, art. 13(3) (requiring
States Parties to ``ensure the religious and moral education of . . .
children in conformity with [the parents'] own convictions''); and the
Convention on the Rights of the Child (CRC), adopted and opened for
signature, ratification, and accession by General Assembly resolution
44/25 of 20 November 89, entry into force 2 September 90, art. 14;
Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, General Assembly resolution
36/55 of 25 November 81.
\17\ China is a party to the ICESCR and the CRC, and a signatory to
the ICCPR. The Chinese government has committed itself to ratifying,
and thus bringing its laws into conformity with, the ICCPR and
reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly. As a signatory to the ICCPR, China is required under Article
18 of the Vienna Convention on the Law of Treaties, to which it is a
party, ``to refrain from acts which would defeat the object and purpose
of a treaty'' it has signed. Vienna Convention on the Law of Treaties,
enacted 23 May 69, entry into force 27 January 80, art. 18.
\18\ See General Comment No. 22 to Article 18 of the ICCPR for an
official interpretation of freedom of religion as articulated in the
ICCPR. General Comment No. 22: The Right to Freedom of Thought,
Conscience, and Religion (Art. 18), 30 July 93, para. 1. This section
of the Commission's Annual Report primarily uses the expression
``freedom of religion'' but encompasses within this term reference to
the more broadly articulated freedom of ``thought, conscience, and
religion'' (see, e.g., UDHR, art. 18; ICCPR, art. 18).
\19\ ICCPR, art. 18(1), (2), (4). See also General Comment No. 22,
para. 1, 2, 4, 6; and CRC, art. 14. See also Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief.
\20\ For more background on government policy to ``use law to
strengthen management of religious affairs,'' see, e.g., Ye Xiaowen,
``Preface,'' in Shuai Feng and Li Jian, Interpretation of the
Regulation on Religious Affairs [Zongjiao shiwu tiaoli shiyi],
(Beijing: Beijing Religious Culture Press, 2005), 1-2 (pagination for
preface); Beatrice Leung, ``China's Religious Freedom Policy: The Art
of Managing Religious Activity,'' The China Quarterly, no. 184, 894,
907-911 (2005).
\21\ Zhang Xunmou, Policy and Law Department of the State
Administration for Religious Affairs, quoted in Nailene Chou Wiest,
``Religious Groups Get More Room to Move,'' South China Morning Post
(Online), 20 October 04.
\22\ See, e.g., Public Security Bureau Personnel Training Bureau,
Lectures on Domestic Security Defense Studies [Guonei anquan baoweixue
jiaocheng] (Beijing: Mass Publishing Company, 2001), 141-142.
\23\ Wang Zhimin, ``Thoughts on How To Safeguard Social Stability
and Supply High-Grade Service in the Course of Developing the West''
[Dui xibu dakaifa zhong ruhe weihu shehui wending tigong youzhi fuwu de
sikao], in Police Science Society of China, ed., Collected Essays on
Public Security Work and Developing the West, (Beijing: Chinese
People's Public Security University Press, 2002), 254.
\24\ See, e.g., Ye Xiaowen, ``Give Play to the Positive Role of
Religion in Pushing Forward Social Harmony,'' Study Times, 25 December
06 (Open Source Center, 8 January 07). For earlier statements, see,
e.g., Sun Chengbin and Yin Hongzhu, ``National Work Conference on
Religious Affairs Held in Beijing, Jiang Zemin Stressed Need to
Effectively Do a Good Job in Religious Work at the Beginning of This
Century To Serve the Overall Situation of Reform, Development, and
Stability,'' Xinhua, 12 December 01 (Open Source Center, 12 December
01).
\25\ See, e.g., Ye, ``Give Play to the Positive Role of Religion in
Pushing Forward Social Harmony;'' ``SARA Director Calls for Continued
Controls on Religion,'' CECC China Human Rights and Rule of Law Update,
September 2006, 8.
\26\ ``SARA Director Calls for Continued Controls on Religion,''
CECC China Human Rights and Rule of Law Update, September 2006, 8.
\27\ For more information, see, e.g., CECC, 2006 Annual Report, 89,
93.
\28\ Ye Xiaowen, ``Correctly Understanding and Handling the
Religious Relationship in the Socialist Society--Studying Comrade Hu
Jintao's Important Speech at the National United Front Work
Conference,'' Seeking Truth, 18 August 06 (Open Source Center, 23
August 06).
\29\ Wu Jiao, ``Religious Believers Thrice the Official Estimate:
Poll,'' China Daily, 7 February 07 (Open Source Center, 7 February 07).
Figures differ greatly. Unofficial estimates indicate a rapid growth in
numbers in some religious communities. For example, overseas sources
have estimated that up to 100 million people worship in unregistered
Protestant churches and that the number continues to grow. Official
government sources have stated that China has 16 million Protestants
and 4.5 million Catholics affiliated with the state-controlled Catholic
church, but State Administration for Religious Affairs director Ye
Xiaowen also reportedly said that China had 130 million Protestants and
Catholics as of 2006. For an overview of official and unofficial
statistics, see U.S. Department of State, International Religious
Freedom Report--2006, China, and U.S. Department of State,
International Religious Freedom Report --2007, China.
\30\ ``Diligently Strengthen the Foundation, Arouse the Passions To
Serve the Situation--A Scan of Religious Work in 2005'' [Yongxin guben
qiangji dongqing fuwu daju--2005 zongjiao gongzuo saomiao], China
Religions 2006 volume 1, reprinted on the State Administration for
Religious Affairs Web site, 27 January 06.
\31\ See, e.g., ``SARA Holds First Term of Religious Work Cadre
Training'' [Guojia zongjiaoju juban diyiqi zongjiao gongzuo ganbu
peixunban], United Front Work Department (Online), 4 December 06;
``Suzhou Daily: Our City's Religious Personages Discuss Study and
Implementation of `Regulation on Religious Affairs''' [Suzhou ribao:
woshi zongjiaojie renshi zuotan xuexi guanche `zongjiao shiwu tiaoli'],
Suzhou Daily, reprinted on the Suzhou Ethnic and Religious Affairs
Bureau Web site, 17 March 07.
\32\ Measures on the Examination, Approval, and Registration of
Venues for Religious Activity; Measures on the Management of the
Reincarnation of Living Buddhas in Tibetan Buddhism [Cangchuan fojiao
huofo zhuanshi guanli banfa], issued 18 July 07; Measures on
Establishing Religious Schools [Zongjiao yuanxiao sheli banfa], issued
1 August 07; Measures for Putting on File the Main Religious Personnel
of Venues for Religious Activities [Zongjiao huodong changsuo zhuyao
jiaozhi renzhi bei'an banfa], issued 29 December 06; Measures for
Putting on File Religious Personnel [Zongjiao jiaozhi renyuan bei'an
banfa], issued 29 February 06. Measures Regarding Chinese Muslims
Signing Up To Go Abroad on Pilgrimages (Trial Measures) [Zhongguo
musilin chuguo chaojin baoming paidui banfa (shixing)], undated
(estimated date 2006), available on the SARA Web site. See Section IV--
Tibet for an analysis of the Measures on the Management of the
Reincarnation of Living Buddhas in Tibetan Buddhism.
\33\ Shuai and Li, Interpretation of the Regulation on Religious
Affairs. This book is written by drafters of the Regulation on
Religious Affairs. See p. 6 of the preface. The book includes a preface
by State Administration for Religious Affairs (SARA) director Ye
Xiaowen and is advertised on the SARA Web site. A Web search of the
book's title, limited to Web sites with ``gov.cn'' in the Web address,
found only three local governments reporting on having received or used
the text. Web search conducted July 16, 2007. While the text clarifies
some ambiguous provisions of the Regulation on Religious Affairs, it
also leaves some ambiguities--such as the question of whether religions
outside the five belief systems are recognized in practice by the
central government--unanswered.
\34\ Between March 1, 2005, when the national RRA entered into
force, and September 2007, 11 provincial-level areas issued new or
amended comprehensive regulations on religious affairs and made the
texts available on legal databases and other Web sites. These
regulations are: Shanghai Municipality Regulation on Religious Affairs
[Shanghaishi zongjiao shiwu tiaoli], adopted 30 November 95, amended 21
April 05; Henan Province Regulation on Religious Affairs [Henansheng
zongjiao shiwu tiaoli], issued 30 July 05; Zhejiang Province Regulation
on Religious Affairs [Zhejiangsheng zongjiao shiwu tiaoli], issued 6
December 97, amended 29 March 06; Shanxi Province Regulation on
Religious Affairs [Shanxisheng zongjiao shiwu tiaoli], issued 29 July
05; Anhui Province Regulation on Religious Affairs [Anhuisheng zongjiao
shiwu tiaoli], issued 15 October 99, amended 29 June 06 and 28 February
07; Beijing Municipality Regulation on Religious Affairs [Beijingshi
zongjiao shiwu tiaoli], issued 18 July 02, amended 28 July 06;
Chongqing Municipality Regulation on Religious Affairs [Chongqingshi
zongjiao shiwu tiaoli], issued 29 September 06; Hunan Province
Regulation on Religious Affairs [Hunansheng zongjiao shiwu tiaoli],
issued 30 September 06; Liaoning Province People's Congress Standing
Committee Decision on Amending the Liaoning Province Regulation on
Religious Affairs [Liaoningsheng renmin daibiao dahui changwu
weiyuanhui guanyu xiugai ``Liaoningsheng zongjiao shiwu tiaoli'' de
jueding], issued on 28 November 98 as the Liaoning Province Regulation
on the Management of Religious Affairs, amended and name changed on 1
December 06; Sichuan Province Regulation on Religious Affairs
[Sichuansheng zongjiao shiwu tiaoli], issued on 9 May 00 as the Sichuan
Province Regulation on the Management of Religious Affairs, amended and
name changed on 30 November 06; and Tibet Autonomous Region
Implementing Measures for the ``Regulation on Religious Affairs''
(Trial Measures) [Zizang zizhiqu shishi ``zongjiao shiwu tiaoli'' banfa
(shixing)], issued 19 September 06. In addition, the Hebei provincial
government also amended its 2003 Regulation on Religious Affairs,
according to a report from the Hebei Province Ethnic and Religious
Affairs Department Web site, but a public copy appears to be
unavailable. Hebei Province Ethnic and Religious Affairs Department
(Online), ``Hebei Province Regulation on Religious Affairs Revised and
Promulgated'' [``Hebeisheng zongjiao shiwu tiaoli'' xiuding bing
gongbu], 14 February 07. The Anhui provincial government retained
inconsistent provisions in its first amendments, in 2006. For an
analysis of the Anhui amendments and other regulations, see ``Anhui
Government Amends Provincial Religious Regulation,'' CECC China Human
Rights and Rule of Law Update, October 2006, 10-11; ``Zhejiang and
Other Provincial Governments Issue New Religious Regulations,'' CECC
China Human Rights and Rule of Law Update, June 2006, 9-10; ``Beijing
Municipality Amends Local Religious Regulation,'' CECC China Human
Rights and Rule of Law Update, November 2006, 8-9; ``Chongqing
Municipality and Hunan Province Issue New Religious Regulations,'' CECC
Virtual Academy (Online), 4 January 07
\35\ Article 79 of the Legislation Law says that national
regulations have higher force than local ones, and Articles 64 and 88
call for amending or canceling local regulations that conflict with
national legal sources. PRC Legislation Law [Zhonghua renmin gongheguo
lifafa], adopted 15 March 00. Nonetheless, out-of-date provisions
remain within local-level legislation. For example, the Guangdong
Province Regulation on the Administration of Religious Affairs retains
a provision requiring yearly inspections of venues for religious
activities in accordance with a national legal measure (banfa) on the
topic, but subsequent legal developments have voided this legal
guidance. See Guangdong Province Regulation on the Administration of
Religious Affairs [Guangdongsheng shiwu guanli tiaoli], adopted 26 May
00, art. 15. See also ``Beijing Municipality Amends Local Religious
Regulation,'' CECC China Human Rights and Rule of Law Update, November
2006, 8-9; and Shuai and Li, Interpretation of the Regulation on
Religious Affairs, 93. According to this book of interpretations, the
national RRA annuls an earlier measure requiring yearly inspections.
This annulment is not explicit within the text of the RRA itself.
\36\ Hunan Province Regulation on Religious Affairs, art. 48. See
also ``Chongqing Municipality and Hunan Province Issue New Religious
Regulations,'' CECC Virtual Academy (Online), 4 January 07.
\37\ Tibet Autonomous Region Implementing Measures for the
``Regulation on Religious Affairs,'' art. 36-40.
\38\ See, e.g., ``Zhejiang and Other Provincial Governments Issue
New Religious Regulations,'' CECC China Human Rights and Rule of Law
Update, June 2006, 9-10, for a comparison of regulations from four
provincial-level areas.
\39\ The central government has referred to the five religions as
China's main religions, but in practice the state has created a
regulatory system that institutionalizes only these five religions for
recognition and legal protection. See, e.g., State Council Information
Office, White Paper on Freedom of Religious Belief in China, October
1997 (Online) (stating that the religions citizens ``mainly'' follow
are Buddhism, Daoism, Islam, Catholicism, and Protestantism). Wording
from this White Paper is posted as a statement of current policy on the
Web sites of the United Front Work Department, the agency that oversees
religious affairs within the Communist Party, and the State
Administration for Religious Affairs (SARA). Some local regulations on
religious affairs define religion in China to mean only these five
categories. See, e.g., Guangdong Province Regulation on the
Administration of Religious Affairs, art. 3, and Henan Province
Regulation on Religious Affairs, art. 2. There is some limited
tolerance outside this framework for some ethnic minority and ``folk''
religious practices. See text infra and see also Kim-Kwong Chan and
Eric R. Carlson, Religious Freedom in China: Policy, Administration,
and Regulation (Santa Barbara: Institute for the Study of American
Religion, 2005), 9-10, 15-16. Some local governments have recognized
the Orthodox church. See the discussion, infra, on Orthodoxy in China.
Officials told a visiting U.S. delegation in August 2005 that they were
considering at the national level whether to allow some other religious
communities, including the Orthodox church, to register to establish
organizations or religious activity venues, but no decisions in this
area have been reported. U.S. Commission on International Religious
Freedom (USCIRF), ``Policy Focus: China,'' 9 November 05, 4. See also
``A Year After New Regulations, Religious Rights Still Restricted,
Arrests, Closures, Crackdowns Continue,'' Human Rights Watch (Online),
1 March 06 (reporting no decision on whether or not to recognize
additional religions).
\40\ See, e.g., RRA, art. 6 (requiring religious organizations to
register in accordance with the Regulations on the Management of the
Registration of Social Organizations); art. 8 (requiring an application
to the State Administration for Religious Affairs (SARA) to establish
an institute for religious learning); art. 13-15 (imposing an
application procedure to register venues for religious activity); art.
27 (requiring the appointment of religious personnel to be reported to
the religious affairs bureau at or above the county level and requiring
reporting the succession of living Buddhas for approval to governments
at the level of a city divided into districts or higher, and requiring
reporting for the record the appointment of Catholic bishops to SARA).
\41\ These Party-led associations are sometimes also referred to as
``patriotic religious associations.''
\42\ For a description of the religious associations in Chinese
sources, see Shuai and Li, Interpretation of the Regulation on
Religious Affairs, 4-5.
\43\ Authorities accused the monk of engaging in improper relations
with lay practitioners and dismissed him on those alleged grounds.
``Jiangxi Buddhist Master Accused of Being a Womanizer and Driven Out
of Temple,'' Sing Tao Jih Pao, 25 August 06 (Open Source Center, 27
August 06). ``Top Buddhist Officials Join in Persecution of Activist
Monk,'' Human Rights in China (Online), 23 August 06.
\44\ Human Rights Watch and Human Rights in China, ``Devastating
Blows: Religious Repression of Uighurs in Xinjiang,'' April 2005, 49-
53, 55-57 (pagination follows ``text-only'' pdf download of this
report).
\45\ Some organizations operate without any registration and are
tolerated by local authorities. A limited number of organizations have
registered with local officials without affiliating with a Party-
controlled religious association. U.S. Department of State,
International Religious Freedom Report--2006, China.
\46\ See CECC, 2004 Annual Report, Section III(c) Freedom of
Religion, for more information.
\47\ Ministry of Public Security (Online), ``Liu Jinguo's Speech at
Conference on National Work To Investigate and Deal with Rural
Districts That Have Public Order in Disarray'' [Liu Jianguo zai quanguo
paicha zhengzhi nongcun zhi'an hunluan diqu huiyi shang de fayan], 6
July 07. The China Aid Association (CAA) reported detentions in the
aftermath of the campaign's launch. ``Chinese Government Launched
Nationwide Campaign against Uncontrolled Religious Activities; Massive
Arrests Occurred in Inner Mongolia, Liaoning, Xinjiang, Jiangsu, Henan,
Shandong, and Anhui,'' CAA (Online), 24 August 07.
\48\ ``Our District's Work on the Administration of Abnormal
Religious Activities Is Taking on a Desirable Posture'' [Woqu
feizhengchang zongjiao huodong zhili gongzuo xingcheng lianghao
taishi], Baoshan Ethnicities and Religion Net (Online), 20 July 07.
\49\ See, e.g., RRA, art. 4 and White Paper on Freedom of Religious
Belief in China, for more information on these principles.
\50\ ``PRC Public Security Minister Zhou Yongkang Urges Crackdown
on `Hostile Forces,''' Agence France-Presse, 20 March 07 (Open Source
Center, 20 March 07). Zhou made a similar statement again in September,
calling for increased security specifically for the 17th Party
Congress, scheduled for October 2007. Shi Jiangtao, ``Crackdown by
Police Ahead of Party Congress,'' South China Morning Post (Online), 7
September 07. After Western media reported that foreign missionaries
planned to increase their presence during the Olympics, Party-led China
Christian Council head Cao Shengjie told foreign groups to adhere to
Chinese rules and not engage in religious activities without invitation
from the Party-led Protestant church. Kristine Kwok, ``Olympic
Missionaries Warned To Follow Rules,'' South China Morning Post
(Online), 29 May 07; ``Thousands Planning to Bring the Gospel to China
During the Olympic Games,'' AsiaNews (Online), 21 May 07.
\51\ ``Government Intervenes into a Three-Self Church in Shanxi
Province, Pastor Evicted,'' CAA (Online), 9 August 06.
\52\ ``Over 100 Foreign Missionaries Expelled or Forced To Leave by
Chinese Government Secret Campaign,'' CAA (Online), 10 July 07. For
additional reporting on this news, see, e.g., Alexa Olesen, ``Christian
Aid Group Says China Kicking Out Foreign Missionaries Ahead of 2008
Olympics,'' Associated Press (via Nexis), 10 July 07 (citing a U.S.
Embassy spokesperson who said her office had ``heard some reports of
deportations.'')
\53\ Detailed Implementing Rules for the Provisions on the
Management of the Religious Activities of Foreigners within the PRC
[Zhonghua renmin gongheguo jingnei waiguoren zongjiao huodong guanli
guiding shishi xize], issued 26 September 00, art. 17.
\54\ Ministry of Foreign Affairs (Online), ``MFA Spokesperson Liu
Jianchao Answers Reporters Questions'' [Waijiaobu fayanren Liu Jianchao
huida jizhe tiwen], 16 March 05.
\55\ See, e.g., Fujian Province Implementing Measures on the Law on
the Protection of Minors [Fujiansheng shishi ``Zhonghua renmin
gongheguo weichengnianren baohufa'' banfa], issued 21 November 94,
amended 25 October 97, art. 33; Inner Mongolia Autonomous Region (IMAR)
Implementing Measures on the Management of Venues for Religious
Activity [Neimenggu zizhiqu zongjiao huodong changsuo guanli shishi
banfa], issued 23 January 96, art. 13. While the national regulation
addressed in the IMAR measures was annulled in 2005, the IMAR measures
appear to remain in force.
\56\ U.S. Department of State, International Religious Freedom
Report--2006, China.
\57\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices --2006, China
(includes Tibet, Hong Kong, and Macau) (Online), 6 March 07.
\58\ Elisabeth Alles, ``Muslim Religious Education in China,'' 45
Perspectives Chinoises (January-February 2003) (Online); Will Religion
Flourish Under China's New Leadership? Staff Roundtable of the
Congressional-Executive Commission on China, 24 July 03, Testimony of
Dr. Jacqueline M. Armijo-Hussein, Assistant Professor, Department of
Religious Studies, Stanford University.
\59\ See, e.g., Sara L.M. Davis, ``Dance, Or Else: China's
`Simplifying Project,''' China Rights Forum 2006, No. 4--Ethnic Groups
in China, 20 December 06.
\60\ See CECC 2004 Annual Report, 37, for more details on these
campaigns.
\61\ Ye Xiaowen, ``Correctly Understanding and Handling the
Religious Relationship in the Socialist Society--Studying Comrade Hu
Jintao's Important Speech at the National United Front Work
Conference.''
\62\ RRA, art. 34.
\63\ See, e.g., Guangdong Province Ethnic and Religious Affairs
Commission (Online), ``Shantou City Religious Circles Launch Compassion
Activities to Help Haojiang District's Dusheng Village Resume Work
After Disaster'' [Shantoushi zongjiaojie kaizhan aixin huodong bangzhu
haojiangqu dushengcun zuohao zaihou huifu gongzuo], 12 June 06; Hebei
Province Ethnic and Religious Affairs Department (Online), ``Hebei
Province's Two Catholic Associations Establish the `Hebei Promote-
Virtue Charity Service Center''' [Hebeisheng tianzhujiao lianghui
chengli ``Hebei jin de gongyi shiye fuwu zhongxin''], 14 July 06.
\64\ Susan K. McCarthy, ``The Three Represents and the Four Noble
Truths: Faith-Based Civil Society Organizations in Contemporary
China,'' Paper submitted for the 2007 annual meeting of the Association
of Asian Studies, March 22-25, Boston, 9-10. [On File.]
\65\ See, e.g., ``Muslim Hands Reach Out to Gansu,'' China
Development Brief (Online), 6 May 05; ``MH in China: 70 Kids Have Cleft
Lip Correction,'' Muslim Hands Feedback Report 2004 (Online), last
visited 6 October 07; Correspondence to the CECC, 9 May 06; Elaine
Chan, ``Beyond Parallel,'' South China Morning Post, 30 September 06.
\66\ See Section II--Civil Society, infra, for more information.
\67\ See, e.g., Jay Dautcher, ``Public Health and Social
Pathologies in Xinjiang,'' in Xinjiang: China's Muslim Borderland, ed.
S. Frederick Starr (Armonk, New York: M.E. Sharpe, 2004), 285-6.
\68\ This overview paragraph provides a summary of key issues of
concern. See the text that follows the paragraph for more information,
including detailed citations.
\69\ CECC, 2005 Annual Report, 49.
\70\ ``Underground Bishop Jia Zhiguo Is Arrested Again,'' Cardinal
Kung Foundation (Online), 6 June 07 ``Msgr. Jia Zhiguo, Underground
Bishop Is Freed,'' AsiaNews, reprinted on the CAA Web site, 23 June 07.
\71\ ``Mgr Julius Jia Zhiguo, Who Wanted To Disseminate the Pope's
Letter, Is Arrested,'' AsiaNews (Online), 23 August 07.
\72\ ``Underground Bishop Jia Zhiguo Is Arrested Again,'' Cardinal
Kung Foundation. See the CECC Political Prisoner Database for more
information.
\73\ CECC, 2006 Annual Report, 87.
\74\ U.S. Department of State, International Religious Freedom
Report--2006, China.
\75\ ``Officials Assault Nuns Over Land Dispute in Shaanxi
Province,'' CECC China Human Rights and Rule of Law Update, March 2006,
11; ``Registered Catholics Claim Property in Tianjin,'' CECC China
Human Rights and Rule of Law Update, March 2006, 11-12; ``Nuns and
Alleged Assailants Reach Out-of-Court Settlement in Xi'an Beating
Case,'' CECC China Human Rights and Rule of Law Update, December 2006,
9.
\76\ ``Chinese Government Appoints Bishop Without Holy See
Approval,'' CECC China Human Rights and Rule of Law Update, December
2006, 5-6. Wang's ordination followed the CPA's ordinations in April
and May 2006 of other bishops who also lacked Holy See approval.
\77\ ``Guizhou Scheduled To Hold First Episcopal Ordination Since
Papal Letter,'' Union of Catholc Asian News (UCAN) (Online), 3
September 07; ``Vatican Approval for Guiyang Episcopal Ordination Made
Public,'' AsiaNews (Online), 10 September 07.
\78\ ``Beijing Ordination Had Papal Approval,'' UCAN (Online), 22
September 07; ``New Bishop Vows To Lead Catholics Contributing to a
Harmonious Society,'' UCAN (Online), 21 September 07. Holy See approval
was not openly made known until after the ordination. Earlier articles
on Li's nomination differed on whether Li had received approval.
``China Nominates Bishop, Threatening Vatican Rift,'' Reuters (Online),
18 July 07. The Vatican has expressed some support for Li, whom outside
media has suggested is less entrenched in official Chinese Catholic
institutions than his predecessor, Fu Tieshan. ``The New Bishop of
Beijing is Elected,'' AsiaNews (Online), 18 July 07. ``Vatican Welcomes
New China Bishop,'' BBC (Online), 19 July 07. ``Beijing Getting Ready
for the Ordination of Mgr Li Shan, CCPA Seizes Bishop's Residence,''
AsiaNews (Online), 17 September 07. For Chinese reporting on the
appointment, see ``Li Shan Picked as Bishop of Beijing Diocese'' [Li
Shan dangxuan tianzhujiao Beijing jiaoqu zhujiao], China Ethnicity News
(Online), 3 August 07.
\79\ ``Letter of the Holy Father Pope Benedict XVI to the Bishops,
Priests, Consecrated Persons and Lay Faithful of the Catholic Church in
the People's Republic of China,'' Vatican Web site, 27 May 07. Though
dated May 27, the Holy See released the letter on June 30. ``More on
Pope's Letter to China Over Religious Freedom, Appointment of
Bishops,'' Agence France-Presse, 30 June 07 (Open Source Center, 30
June 07).
\80\ ``Beijing Removes Papal Letter to Chinese Church from Web,''
AsiaNews (Online), 3 July 07.
\81\ ``Priests Arrested and Put into Solitary Confinement: the
Governments Answer to the Pope's Letter,'' AsiaNews (Online), 2 August
07.
\82\ Yang Yingchun, ``Ismail Tiliwaldi, While Speaking at an
Autonomous Region-Wide Religion Work Meeting, Calls for Stronger
Management Over Pilgrimage and the `Two Religions' To Safeguard the
Masses' Interest,'' Xinjiang Daily, 11 July 07 (Open Source Center, 13
July 07); ``Autonomous Prefecture's Religion Meeting Stresses
Strengthening Management of Religion, Safeguarding Social Stability''
[Zizhizhou zongjiao huiyi qiangdiao jiaqiang zongjiao guanli weihu
shehui wending], Changji Evening News, reprinted on the Changji Hui
Autonomous Prefecture Government Web site, 14 August 07.
\83\ ``Two Priests Detained in Wenzhou After Arrest on Return from
Europe,'' UCAN, 3 October 06; ```Underground' Chinese Catholic Priests
Charged, Likely To Face Trial,'' UCAN (Online), 26 October 06. ``Two
Underground Priests from Wenzhou Soon To Be Freed,'' AsiaNews, 17 May
07; ``Two Underground Priests, Arrested After Pilgrimage, Sentenced Six
Months After Arrest,'' UCAN (Online), 16 May 07. Authorities released
Shao from prison in May 2007 to obtain medical treatment. ``Jailed
Wenzhou Priest Released Provisionally for Medical Treatment,'' UCAN, 30
May 07. Authorities released Jiang in August. ``Second Of Two Jailed
Wenzhou Priests Released, Diagnosed With Heart Conditions,'' UCAN, 29
August 07. See the CECC Political Prisoner Database for more
information. Jiang Surang is also known by the name Jiang Sunian.
\84\ This overview paragraph provides a summary of key issues of
concern. See the text that follows the paragraph for more information,
including detailed citations.
\85\ Human Rights Watch, ``Devastating Blows,'' 73-74. The report
cites official data published in 2001.
\86\ Ibid., 69.
\87\ ``Teacher and 37 Students Detained for Sudying [sic] Koran in
China: Rights Group'' Agence France-Presse, 15 August 05 (Open Source
Center, 15 August 05).
\88\ ``Three Detained in East Turkistan for `Illegal' Religious
Text,'' Uyghur Human Rights Project (Online), 3 August 05.
\89\ See, e.g., ``Xinjiang Government Continues Restrictions on
Mosque Attendance,'' CECC China Human Rights and Rule of Law Update,
March 2006, 8. XUAR regulations forbid parents from allowing children
to engage in religious activities, and mosques have restricted
children's entry. The U.S. Department of State noted in its 2006
Country Reports on Human Rights Practices for China, however, that such
restrictions were not uniformly enforced in practice. U.S. Department
of State, Country Reports on Human Rights Practices--2006, China.
\90\ Human Rights Watch, ``Devastating Blows,'' 55-56.
\91\ USCIRF, ``Policy Focus: China,'' 6.
\92\ RRA, art. 11, 43.
\93\ ``Islamic Congress Establishes Hajj Office, Issues New
Rules,'' CECC Human Rights and Rule of Law Update, June 2006, 12-13.
\94\ ``Government Increases Controls Over Muslim Pilgrimages,''
CECC Human Rights and Rule of Law Update, December 2006, 20; Circular
of Provisions Regarding Organizing and Carrying Out Secondary
Pilgrimage Activities [Guanyu zuzhi kaizhan fuchao huodong ruogan
guiding de tongzhi], August 2006.
\95\ U.S. Department of State, International Religious Freedom
Report--2007, China (noting reasons why some Uighur Muslims in
particular have avoided participating in official trips).
\96\ Jackie Armijo, ``Islamic Education in China,'' 9 Harvard Asia
Quarterly, (Winter 2006) (Online).
\97\ Cheng Lixin, ``Wang Lequan, Speaking at the Feedback Meeting
of the United Front and Religious Affairs Investigation and Study Team,
Emphasizes the Need To Strengthen Management of Pilgrimage Activity To
Safeguard the Masses Interests,'' Xinjiang Daily, 19 June 07 (Open
Source Center, 25 June 07); ``China Confiscates Muslims' Passports,''
Radio Free Asia (Online), 27 June 07; ``Activist: Members of Muslim
Minority Group in China Forced To Surrender Their Passports,''
Associated Press, reprinted in the International Herald Tribune, 20
July 07.
\98\ Yang, ``Ismail Tiliwaldi, While Speaking at an Autonomous
Region-Wide Religion Work Meeting, Calls for Stronger Management Over
Pilgrimage and the `Two Religions' To Safeguard the Masses' Interest.''
\99\ ``Over 70,000 Illegal Publications `Smashed to Dust''' [7 wan
duo ce feifa chubanwu ``fenshensuigu''], Xinjiang Legal Daily (Online),
6 August 07.
\100\ ``Xinjiang Government Seizes, Confiscates Political and
Religious Publications,'' CECC Human Rights and Rule of Law Update,
July 2006, 7-8.
\101\ ``Xinjiang Uighur Autonomous Region Destroys 29 Tons of
Illegal Books'' [Xinjiang weiwuer zizhiqu xiaohui 29 dun feifa tushu],
Tianshan Net (Online), 16 March 06.
\102\ Xinjiang Uighur Autonomous Region Implementing Measures of
the Law on the Protection of Minors [Xinjiang weiwuer zizhiqu shishi
``Weichengnianren baohufa'' banfa], issued 25 September 93, art. 14. No
other provincial or national regulation on minors or on religion
contains this precise provision. Devastating Blows, 58.
\103\ ``Local Governments in Xinjiang Continue Religious Repression
During Ramadan,'' CECC Virtual Academy, 12 December 06. Some local
governments also extended these campaigns to teachers.
\104\ Kashgar Government (Online), ``Yopurgha County Implements
`Mandatory Visits System' Among Students in Elementary and Secondary
Schools,'' [Yuepuhuxian zai zhongxiaoxuesheng zhong shixing
``bifangzhi''], 11 October 06.
\105\ This overview paragraph provides a summary of key issues of
concern. See the text that follows the paragraph for more information,
including detailed citations.
\106\ The document says that meetings that are ``purely''
gatherings of family members within the home should be placed under
normal management, and non-family gatherings that are large in scope
and disruptive should be stopped and participants urged to go to
approved sites of worship. Gatherings with elements of cult practices
or foreign infiltration should be dispelled and if necessary subject to
penalties. ``Our District's Work on the Administration of Abnormal
Religious Activities Is Taking on a Desirable Posture'' [Woqu
feizhengchang zongjiao huodong zhili gongzuo xingcheng lianghao
taishi], Baoshan Ethnicities and Religion Net (Online), 20 July 07.
\107\ ``Annual Report on Persecution of Chinese House Churches by
Province from January 2006 to December 2006,'' CAA (Online), January
2007, 3.
\108\ CAA noted that while church members are often released after
interrogation, authorities have held church leaders for longer periods,
in some cases imposing prison sentences. Ibid.,19.
\109\ ``Beijing House Church Activist Hua Huiqi and His Mother
Attacked and Detained by Police,'' CAA (Online), 27 January 07. See the
CECC Political Prisoner Database for additional information.
\110\ ``Beijing House Church Activist Hua Huiqi Sentenced for 6
Months Secretly,'' CAA (Online), 4 June 07; ``House Church Christian
Activist Hua Huiqi and Mr. Qi Zhiyong Were Removed from Home Before US
Presidential Visit,'' CAA (Online), 21 November 05; ``Activist's Mother
`Held Hostage' for Information,'' Human Rights In China (HRIC)
(Online), 17 August 07; ``Elderly Activist Denied Medical Parole,''
HRIC (Online), 13 September 07. See the CECC Political Prisoner
Database for more information.
\111\ ``Prominent Beijing Rights Defense Christian Lawyer Li Heping
Kidnapped and Tortured; Two Beijing Christian Activists Held Under
House Arrest,'' CAA, reprinted in Christian News Wire, 3 October 07.
\112\ See the CECC Political Prisoner Database for more
information. See also ``UN Petition Submitted for Jailed Ailing Church
Leader; Medical Parole Appeal Filed by Family Members,'' CAA (Online),
12 July 06. Gong's accusers say they were tortured into signing
allegations against Gong. Authorities originally charged Gong with
using a cult to undermine the implementation of the law, along with
premeditated assault, and rape, but the cult charges were later
dropped. Examples of cult activity included carrying out unauthorized
missionary activities and publishing and distributing a church
periodical.
\113\ ``Beijing House Church Activist Liu Fenggang Released,'' CAA
(Online), 7 February 07.
\114\ ``Prominent Beijing Rights Defense Christian Lawyer Li Heping
Kidnapped and Tortured; Two Beijing Christian Activists Held Under
House Arrest,'' CAA.
\115\ White Paper on Freedom of Religious Belief in China.
\116\ ``Three House Church Buildings in Zhejiang Facing Imminent
Destruction by Government,'' CAA (Online), 14 July 07.
\117\ ``Basic People's Court of Xiaoshan District, Hangzhou City,
Criminal Judgment'' [Hangzhou xiaoshanqu renminfayuan xingshi
panjueshu], 22 December 06, reprinted on the CAA Web site, 15 January
07.
\118\ ``Annual Report on Persecution of Chinese House Churches, ''
CAA, 3-4.
\119\ ``Church Property in Gansu Occupied by the Government, 300
Christians Protest by Sitting Demonstration; 3 Singapore Christians
Arrested & Released in Xinjiang, 5 Local Believers Still in
Detention,'' CAA (Online), 31 October 06. Government officials
threatened to withhold retirement benefits to church members and
reportedly used violence against the demonstrators. The group
reportedly reached a compromise with authorities. ``Annual Report on
Persecution of Chinese House Churches,'' CAA, 19.
\120\ See the CECC Political Prisoner Database for more information
about these cases. CAA reported in September 2007 that authorities
arrested Zhou Heng, a house church leader in the Xinjiang Uighur
Autonomous Region, on August 31 after he received a shipment of Bibles
reported to have been donated by an overseas church. Authorities
accused him of illegally operating a business. ``House Church Leader in
Xinjiang Formally Arrested for Receiving Bibles and Abused in Jail,''
CAA (Online), 5 September 07. In March 2007, CAA reported that
authorities arrested unregistered church leader Chen Jiaxi in January
2007 for distributing religious literature, on the grounds he was
illegally managing a business. CAA reported that Chen was expected to
stand trial soon but has not reported further information on the case.
``House Church Leaders Arrested in Liaoning and Anhui Province,'' CAA
(Online), 31 March 07. In 2006, the CAA reported that authorities
levied a similar charge on pastor Liu Yuhua after he printed and
distributed religious literature. ``Multiple Arrests of Protestants
Occurred in Shandong and Jiangsu; One South Korea Missionary Expelled
from China; Prominent Chinese Legal Scholar Banned to Go Abroad,'' CAA
(Online), 16 May 06.
\121\ ``Renowned Beijing Church Leader Cai Zhuohua Released After
Three Years Imprisonment for Distributing Bibles; Forced Labor for
Olympics Products Imposed,'' CAA (Online), 14 September 07.
\122\ ``Chinese Authorities Release House Church Filmmaker After
140 Days in Custody,'' CECC Human Rights and Rule of Law Update,
September 2006, 9; ``Journalist Arrested for Posting Reports About
Crackdown on Christians,'' Reporters Without Borders (Online), 11
August 06.
\123\ ``House Church Members Successfully Fight Detentions For
Unauthorized Worship,'' CECC Virtual Academy, 19 December 06.
\124\ The church leaders have since filed lawsuits against the
government. According to an April report from the China Aid
Association, Dong Quanyu and Li Huage of Henan province await a
decision on whether their case will be heard. In April 2007, the
People's Court of Duolun County, Inner Mongolia Autonomous Region
accepted Zhi Ruiping's case for an upcoming trial. ``Released Church
Leaders in Henan and Inner Mongolia File Lawsuit Against Abusers in the
Government,'' CAA (Online), 18 April 07.
\125\ See the subsection on ``Government Persecution of Falun
Gong,'' infra, for more information.
\126\ ``Thirty-Three Chinese and Three Korea[n] Pastors Released in
Henan After International Religious Pressure; One Sentenced for 10 Days
Detention,'' CAA (Online), 7 March 07.
\127\ ``Confiscated Church Properties in Jiangsu Returned after
International Pressure,'' CAA (Online), 11 May 07.
\128\ ``Delegation of Chinese Protestants Attends International
Mission Conference,'' CECC Human Rights and Rule of Law Update, June
2005, 6.
\129\ ``House Church Lawyers Promote Religious Freedom Through the
Rule of Law,'' CECC Human Rights and Rule of Law Update, July 2006, 3.
\130\ Yang, ``Ismail Tiliwaldi, While Speaking at an Autonomous
Region-Wide Religion Work Meeting, Calls for Stronger Management Over
Pilgrimage and the `Two Religions' To Safeguard the Masses' Interest.''
This call was reiterated by local authorities in Changji Hui Autonomous
Prefecture in August. ``Autonomous Prefecture's Religion Meeting
Stresses Strengthening Management of Religion, Safeguarding Social
Stability,'' Changji Evening News.
\131\ See, e.g., ``Massive Arrest of Chinese and American Christian
Leaders in Xinjiang,'' CAA (Online), 24 April 07; ``3 Singapore
Christians Arrested and Released in Xinjiang, 5 Local Believers Still
in Detention,'' CAA (Online), 31 October 06; ``35 Arrested Christians
in Xinjiang Released after Interrogation; American Korean Pastor Put
Under Surveillance in a Hotel,'' CAA (Online), 27 October 06; ``On
Christmas Day, Christmas Services Stopped in Xinjiang; House Church
Leaders Arrested; Persecution Against Beaten Christian Businessman
Intensified,'' CAA (Online), 27 December 05.
\132\ ``Over 100 Foreign Missionaries Expelled or Forced To Leave
by Chinese Government Secret Campaign,'' CAA (Online), 10 July 07.
\133\ ``China Sentences Underground Pastor to 7.5 Years in
Prison,'' Agence France-Presse (Online), 12 July 06. See the CECC
Political Prisoner Database for more information.
\134\ Timothy Chow, ``Chinese House Church Historian Denied ID
Card,'' Compass Direct News, reprinted on the CAA Web site, 17 February
06.
\135\ U.S. Department of State, International Religious Freedom
Report--2007, China.
\136\ ``Head of Religious Association: Religious Adherents Not
Arrested Due to Their Faith,'' CECC Virtual Academy (Online), 26 June
06; ``Falun Gong Practitioners To Be Punished Under New Administration
Punishment Law,'' CECC China Human Rights and Rule of Law Update, May
2006, 6.
\137\ See the CECC Political Prisoner Database for more
information.
\138\ See the CECC Political Prisoner Database for more
information.
\139\ See the CECC Political Prisoner Database for more
information.
\140\ See China Human Rights Lawyers Concern Group (Online),
``Demand Immediate Release of Beijing Human Rights Lawyer Gao
Zhisheng,'' 27 September 07. For more information about Gao's open
letter, which called on the Congress to take action against the Chinese
government's human rights abuses, see Human Rights Torch Relay
(Online), ``Gao Zhisheng's letter to the Senate and the Congress of the
United States,'' 12 September 07; Bill Gertz, ``Chinese dissident urges
boycott of Olympics,'' Washington Times (Online), 21 September 07.
\141\ ``Prominent Beijing Rights Defense Christian Lawyer Li Heping
Kidnapped and Tortured; Two Beijing Christian Activists Held Under
House Arrest,'' CAA; ``Amnesty International's Urgent Appeal for
Beijing Human Rights Lawyer Li Heping, Who Was Abducted and
Assaulted,'' Amnesty International, reprinted in CAA (Online), 4
October 07.
\142\ ``House Church Members Successfully Fight Detentions For
Unauthorized Worship,'' CECC Virtual Academy, 19 December 06; ``Court
Officials Refuse Falun Gong Practitioner's Appeal of RTL Sentence,''
CECC Virtual Academy, 3 November 06.
\143\ See the CECC Political Prisoner Database for more
information.
\144\ See, e.g., ``Dachang Demolishes Illegal Small Temple
According to Law'' [Dachang zhen yifa chaichu yichu feifa xiao miao],
Shanghai Baoshan Ethnicity and Religion Net (Online), 1 September 06;
Mianyang City Bureau of Ethnic and Religious Affairs (Online), ``Govern
According to the Law for Good Results, Strength To Demolish `Illegal
Small Temples' Great,'' [Yifa zhili xiaoguo hao, chai ``feifa xiao
miao'' lidu da], 08 June 06.
\145\ See, e.g., ``Investigative Report on the Situation of
Unregistered Small Temples and Convents'' [Weijing zhengfu dengji de
xiao miao xiao an qingkuang de diaoyan baogao], Xiaogang Information
Net (sponsored by the Beilun District People's Government Xiaogang
Neighborhood Committee Office) (Online), 12 September 06; ``Some
Reflections on Rural Religious Work in a New Period'' [Xin shiqi nogcun
zongjiao gongzuo de jidian sikao], Yixing United Front Web Site
(Online), 13 June 05.
\146\ State Administration for Religious Affairs (Online), ``Forum
for Religious Personages Opens in Beijing at Second-year Anniversary of
the Implementation of the `Regulation on Religious Affairs'''
[``Zongjiao shiwu tiaoli'' shishi liang zhou nian zongjiaojie renshi
zuotanhui zai jing zhaokai], 3 March 07.
\147\ See, e.g., ``China Exclusive: China Supports Buddhism in
Building Harmonious World,'' Xinhua, 12 April 06 (Open Source Center,
12 April 06).
\148\ Jim Yardley, ``In Crackdown, China Shuts Buddhist Site and
Seizes Catholic Priests,'' New York Times, 19 August 04.
\149\ U.S. Department of State, International Religious Freedom
Report--2006, China.
\150\ Among provincial-level areas, the Heilongjiang Regulation on
the Management of Religious Affairs and Inner Mongolia Autonomous
Region Implementing Measures for the Management of Venues for Religious
Activity recognize the Orthodox Church. Heilongjiang Regulation on the
Management of Religious Affairs [Heilongjiangsheng zongjiao shiwu
guanli tiaoli], issued 12 June 97, art. 2; Inner Mongolia Autonomous
Region Implementing Measures for the Management of Venues for Religious
Activity [Nei menggu zizhiqu zongjiao huodong changsuo guanli shishi
banfa], issued 23 January 96, art. 2.
\151\ For more information see ``Religious Freedom for China's
Orthodox Christians'' in the CECC 2005 and 2006 Annual Reports.
\152\ In addition to work in these areas, it also oversees anti-
cult work and addresses ``foreign infiltration.'' The Web site of the
State Administration for Religious Affairs (SARA) includes a
description of this office but does not indicate when it was
established. The curriculum vitae for a SARA staff members notes he was
made head of this department in December 2004. The Hong Kong newspaper
Ta Kung Pao reported the establishment of this department in September
2005. Chan and Carlson write that authorities decided at a January 2004
conference to establish a SARA department focused on folk beliefs. Chan
and Carlson, 15-16. State Administration for Religious Affairs
(Online), ``Fourth Work Department'' [Yewu sisi], last visited 6
October 07; State Administration for Religious Affairs (Online), ``CV
of [SARA Official] Jiang Jianyong'' [Jiang Jianyong jianli], last
viewed 6 October 07. ``Religious Affairs Bureau Establishes Special
Department To Manage Folk Religions'' [Zongjiaoju she zhuansi guanli
minjian zongjiao], Ta Kung Pao (Online), 20 September 05.
\153\ Hunan Province Regulation on Religious Affairs, art. 48. See
also ``Chongqing Municipality and Hunan Province Issue New Religious
Regulations,'' CECC Virtual Academy (Online), 4 January 07. Some
localities outside Hunan province also regulate folk beliefs. See,
e.g., ``Xiamen Exchanges Experiences on Management of Venues for Folk
Beliefs'' [Xiamen jiaoliu minjian xinyang huodong changsuo guanli
jingyan], China Ethnicities News (Online), 6 February 07; ``Yanping
District, Jian'ou City Standardizes Financial Management of Venues for
Folk Beliefs,'' [Jian'ou shi yanping qu guifan minjian xinyang changsuo
caiwu guanli], China Ethnicities News (Online), 13 February 07.
\154\ ``Chongqing Municipality and Hunan Province Issue New
Religious Regulations,'' CECC Virtual Academy (Online), 4 January 07.
\155\ Hunan Provincial Religious Affairs Bureau (Online), ``State
Administration for Religious Affairs Comes To Hunan To Investigate and
Research Our Province's Present Conditions for Folk Beliefs and
Experimental Management Situation'' [Guojia zongjiaoju lai xiang
diaoyan wo sheng minjian xinyang xianzhuang he shidian guanli
qingkuang], last viewed 6 October 07 (posted on the Hunan Provincial
Religious Affairs Bureau Web site in 2007, in apparent reference to
events in August 2006). See also ``Popular Folk Beliefs and Religion''
[Minjian xinyang yu zongjiao], China Religion, September 2004
(indicating, within an official publication under SARA, some support
for protecting folk beliefs but also subjecting them to state control).
\156\ State Administration for Religious Affairs, ``Forum for
Religious Personages Opens in Beijing at Second-year Anniversary of the
Implementation of the Regulation on Religious Affairs;'' ``Some
Reflections on Rural Religious Work in a New Period,'' Yixing United
Front Web Site; U.S. Department of State, International Religious
Freedom Report--2006, China. Some activities related to
``superstitions'' or ``feudal superstitions'' are penalized under the
Criminal Law and administrative regulations. See, e.g., the PRC
Criminal Law, enacted 1 July 79, amended 14 March 97, art. 300, and the
PRC Public Security Administration Punishment Law, enacted 28 August
05, art. 27(1).
Notes to Section II--Ethnic Minority Rights
\1\ The word ``minzu'' refers to populations within China's borders
that the government does not designate as Han Chinese. Although Chinese
and outside sources have used such expressions as ``nationality'' and
``ethnic group'' to translate the word into English, some scholars
writing in English choose to leave the term in Chinese. See e.g.,
Gardner Bovingdon, ``Autonomy in Xinjiang: Han Nationalist Imperatives
and Uyghur Discontent,'' East-West Center Washington 2004, Policy
Studies 11, 49 (endnote 4); Jonathan N. Lipman, Familiar Strangers: A
History of Muslims in Northwest China (Seattle: University of
Washington Press, 1997), xx-xxv (discussing the notion of minzu).
The 55 groups designated as minzu are spread across nearly two-
thirds of China's area, mainly along international borders. They speak
more than 60 languages and include communities such as Koreans,
Mongols, and Kazaks that have ethnic counterparts in neighboring
countries. For more information, see the ``Special Focus for 2005:
China's Minorities and Government Implementation of the Regional Ethnic
Autonomy Law,'' CECC, 2005 Annual Report, 11 October 05, 13-23.
\2\ ``Major Figures of the 2000 Population Census,'' National
Bureau of Statistics of the PRC posted on the Web site of the China
Population Information and Research Center (Online), 28 March 2001.
\3\ See generally Regional Ethnic Autonomy Law (REAL), enacted 31
May 84, amended 28 February 01; PRC Constitution, art. 4. For ethnic
minority protections within other laws, see, e.g., the PRC Education
Law, enacted 18 March 95, art. 9, 12; PRC Labor Law, enacted 5 July 94,
art. 12, 14.
\4\ See discussion infra for more information on restrictions on
ethnic minority rights. Regarding international human rights standards,
see, e.g., the Universal Declaration of Human Rights, adopted and
proclaimed by General Assembly resolution 217 A (III) of 10 December
48, art. 2, 7; International Covenant on Civil and Political Rights
(ICCPR) adopted by General Assembly resolution 2200A (XXI) of 16
December 66, entry into force 23 March 76, art. 2(1), 26, 27;
International Covenant on Economic, Social, and Cultural Rights
(ICESCR) adopted by General Assembly resolution 2200A (XXI) of 16
December 66, entry into force 3 January 76, art. 2(2); Convention on
the Rights of the Child (CRC), adopted and opened for signature,
ratification, and accession by General Assembly resolution 44/25 of 20
November 89, entry into force 2 September 90, art. 2(1), 30. See
generally, International Convention on the Elimination of All Forms of
Racial Discrimination (CERD), adopted and opened for signature and
ratification by General Assembly resolution 2106 (XX) of 21 December
65, entry into force 4 January 69. Article 1(1) of CERD defines racial
discrimination to mean ``any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin
which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.''
China is a party to the ICESCR, CRC, and CERD, and a signatory to
the ICCPR. The Chinese government has committed itself to ratifying,
and thus bringing its laws into conformity with, the ICCPR and
reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly. As a signatory to the ICCPR, China is required under Article
18 of the Vienna Convention on the Law of Treaties, to which it is a
party, ``to refrain from acts which would defeat the object and purpose
of a treaty'' it has signed. Vienna Convention on the Law of Treaties,
enacted 23 May 69, entry into force 27 January 80, art. 18.
\5\ State Council Provisions on Implementing the PRC Regional
Ethnic Autonomy Law (REAL Implementing Provisions) [Guowuyuan shishi
``Zhonghua renmin gongheguo minzu quyu zizhifa'' ruogan guiding],
issued 19 May 05.
\6\ See, e.g., REAL Implementing Provisions, art. 5, 10-12, 15, 25,
30, 34.
\7\ REAL Implementing Provisions, art. 22, 29. Article 22 promotes
``bilingual education'' in Chinese and ethnic minority languages. The
article represents a shift from Article 37 of the 1984 REAL, which
articulates support for education within ethnic minority languages.
While the REAL promotes language and literature courses in Mandarin
Chinese, it does not call for ``bilingual education.'' As discussed
infra, some ``bilingual'' programs have eliminated almost all use of
ethnic minority languages.
\8\ REAL, art. 19.
\9\ ``NPCSC Examines Implementation of Regional Ethnic Autonomy
Law,'' CECC China Human Rights and Rule of Law Update, August 2006, 6-
7. ``Official Evaluates Regional Ethnic Autonomy in Inner Mongolia,''
CECC China Human Rights and Rule of Law Update, September 2006, 16-17.
\10\ ``Official Evaluates Regional Ethnic Autonomy in Inner
Mongolia,'' CECC China Human Rights and Rule of Law Update, September
2006, 16-17.
\11\ ``Mongolian Internet Forum Closed for Discussing Ethnic
Problems,'' Southern Mongolian Human Rights Information Center
(Online), 16 July 07; ``Two Ethnic Minority Web Sites in Inner Mongolia
Closed,'' CECC China Human Rights and Rule of Law Update, July 2006,
14; ``Authorities Close Two Mongolian-Language Web Sites for Posting
`Separatist' Materials,'' CECC China Human Rights and Rule of Law
Update, November 2005, 13-14.
\12\ ``Authorities Try Mongol Couple, Assault Son of Imprisoned
Mongol Activist,'' CECC China Human Rights and Rule of Law Update,
August 2006, 2. See the CECC Political Prisoner Database for more
information.
\13\ ``Mongolian Dissident's Passport Application Denied for
`Possible Harm to State Security and National Interests,''' Southern
Mongolian Human Rights Information Center (Online), 8 August 07.
\14\ ``Authorities Try Mongol Couple, Assault Son of Imprisoned
Mongol Activist,'' CECC China Human Rights and Rule of Law Update,
August 2006, 2. See the CECC Political Prisoner Database for more
information.
\15\ ``Inner Mongolia Government Promotes Mongolian Language,''
CECC China Human Rights and Rule of Law Update, September 2006, 10-11.
\16\ See, e.g., Human Rights in China, ``China: Minority Exclusion,
Marginalization and Rising Tensions,'' 2007, 22-24. For information on
the impact of economic development in the XUAR, see e.g., Sean R.
Roberts, ``A `Land of Borderlands': Implications of Xinjiang's Trans-
border Interactions'' in Xinjiang: China's Muslim Borderland, ed. S.
Frederick Starr (Armonk, NY: M.E. Sharpe, 2004), 224-225 and Stanley W.
Toops, ``The Ecology of Xinjiang: A Focus on Water,'' in Xinjiang:
China's Muslim Borderland, 270-271. See also Section IV--Tibet for more
information on development issues in Tibetan areas.
\17\ State Council General Office Circular on Printing and Issuing
the 11th 5-Year Program for Ethnic Minority Undertakings [Guowuyuan
bangongting guanyu yinfa shaoshu minzu shiye `shiyiwu' guihua de
tongzhi], issued 27 February 07.
\18\ Zhao Huanxin, ``Priority Plan for Ethnic Minorities,'' China
Daily, 30 March 07 (Open Source Center, 30 March 07).
\19\ State Council General Office Circular on Printing and Issuing
the 11th 5-Year Program for Ethnic Minority Undertakings, item 1(3),
2(9).
\20\ Ibid., item 2(11).
\21\ See ``Rights Violations in Xinjiang'' and ``Religious Freedom
for China's Muslims,'' CECC, 2005 Annual Report, 21-23 and 51-53 for
addition information. For information on policies beginning in the
1990s, see, e.g., Nicolas Becquelin, ``Xinjiang in the Nineties,'' The
China Journal, No. 44, July 00, 68-70, 86-88; James A. Millward,
Eurasian Crossroads: A History of Xinjiang (New York: Columbia UP,
2007), 322-341.
\22\ For an overview of the campaigns, see Human Rights Watch and
Human Rights in China, ``Devastating Blows: Religious Repression of
Uighurs in Xinjiang,'' April 05, 66-69. (Online. Pagination follows
``text-only'' pdf download of this report.)
\23\ ``Wang Lequan Stresses at Regional Political and Legal Work
Conference a Need To Think of Dangers When in Safety, Firmly Seize
Initiative in Struggling Against the Enemies,'' Xinjiang Daily, 7
January 07 (Open Source Center, 9 January 07).
\24\ ``Xinjiang Public Security Offices Destroy `East Turkistan
Islamic Movement' Terrorist Training Base'' [Xinjiang gong'an jiguan
daohui ``gongyiyun'' yichu kongbu xunlian yingdi], Tianshan Net
(Online), 8 January 07.
\25\ See, e.g., Robert Saiget, ``Questions Linger Over China's
Terrorist Threat After Deadly Raid,'' Agence France-Presse, reprinted
in Yahoo news (Online), 10 January 07 (citing scholar Dru Gladney, who
stated that the government had provided little evidence indicating the
existence of a terrorist base rather than another criminal, but non-
terrorist, operation); ``Chinese Government's Claims of Uyghur
Terrorism Still Lack Substance,'' Uyghur American Association (Online),
9 January 07.
\26\ In addition to portraying peaceful acts as terrorist threats
(such as charging writer Nurmemet Yasin with ``inciting splittism'' for
authoring a short story about a caged pigeon), the government may also
portray some ordinary criminal activity as terrorist or separatist.
``Uighurs Face Extreme Security Measures; Official Statements on
Terrorism Conflict,'' CECC China Human Rights and Rule of Law Update,
May 2006, 12. For an analysis of Chinese statistics on terrorism and
separatism, see James Millward, ``Violent Separatism in Xinjiang: A
Critical Assessment,'' East-West Center Washington 2004, Policy Studies
6.
\27\ Wang Lexiang, ``Analysis of Mass Incidents in Xinjiang and
Suggestions on How To Handle Them,'' Beijing Public Security Research,
20 July 07 (Open Source Center, 3 September 07).
\28\ ``Soundly Drive Ahead in the Fight Against Separatism,
Resolutely Safeguard Xinjiang's Stability'' [Zhashi tuijin fanfenlie
douzheng jianjue weihu xinjiang wending], Tianshan Net (Online), 7
August 07.
\29\ Human Rights Watch, ``Devastating Blows,'' 71-72. The report
cites official data published in 2001.
\30\ Ibid., 73-74, citing official data published in 2001.
\31\ Ibid., 72. Human Rights Watch and Human Rights in China
estimate this percentage may represent over 1,000 prisoners. The state
prosecuted 4,500 people nationwide for the crime of endangering state
security between 1998 and 2004. ``China state security trials `find 99
pct guilty,''' Reuters (Online), 21 February 06.
\32\ Human Rights Watch, ``Devastating Blows,'' 69.
\33\ Schools have reduced minority language use through programs
the government deems ``bilingual,'' but that place primacy on Mandarin
Chinese, in some cases at the almost complete exclusion of ethnic
minority languages. See, e.g., ``Our District Promotes Bilingual
Education Work, By 2012 Our District Will Realize Every Ethnic Minority
Language School Teaching All Classes in Mandarin Except for Mother-
Tongue [Language Arts] Class'' [Woqu tuijin shuangyu jiaoxue gongzuo
dao 2012 nian, woqu jiang shixian ge minyu xuexiao chu muyu wai suoyou
kecheng dou shiyong hanyu jiaoxue], Chochek News, reprinted in Chochek
Online, 20 December 06; ``City in Xinjiang Mandates Exclusive Use of
Mandarin Chinese in Schools,'' CECC China Human Rights and Rule of Law
Update, September 2006, 9-10; ``Xinjiang Official Describes Plan To
Expand Use of Mandarin in Minority Schools,'' CECC China Human Rights
and Rule of Law Update, March 2006, 13. ``Xinjiang Government Promotes
Mandarin Chinese Use Through Bilingual Education,'' CECC China Human
Rights and Rule of Law Update, January 2006, 17-18. For a general
overview of bilingual education in the XUAR, including information on
how bilingual education in the XUAR has been focused on transitioning
students away from using their native language in school, see Arienne
M. Dwyer, ``The Xinjiang Conflict: Uyghur Identity, Language Policy,
and Political Discourse,'' East-West Center Washington 2005, Policy
Studies 15, especially pages 38-41. For more information on the recent
scope of bilingual education, see, e.g., ``Xinjiang Bilingual Education
Students Increase 50-Fold in 6 Years'' [Xinjiang shuangyu xuesheng liu
nian zengzhang 50 bei], Xinjiang Economic News, reprinted in Tianshan
Net, 31 October 06. In 2005 and 2006 the government announced it would
establish ``bilingual'' preschool education in seven prefectures
through programs that provide material incentives for students to
enroll. ``5-Year Investment of 430 Million Yuan To Develop Rural
Bilingual Preschool Education, Which Our District Will Launch This
Fall'' [5 nian touru 4.3 yi fazhan nongcun xueqian ``shuangyu'' jiaoyu
woqu jinnian qiuji qidong xueqian ``shuangyu'' jiaoyu], Xinjiang
Education News, reprinted on Xinjiang Education Department Web site, 3
July 06; ``Xinjiang Official Describes Plan To Expand Use of Mandarin
in Minority Schools,'' CECC Human Rights and Rule of Law Update, March
2006, 13.
Chinese law guarantees the freedom of ethnic minorities to use and
develop their own languages and promotes education in those languages.
REAL, art. 10, 37. The 2005 REAL Implementing Provisions affirm the
freedom to use and develop minority languages, but also place emphasis
on the use of Mandarin by promoting bilingual education and bilingual
teaching staff. REAL Implementing Provisions, art. 22.
\34\ See, e.g., ``Artush Starts Mandarin Chinese Strengthening
Training Class in Shenyang'' [Atushi kaiban fu Shenyang jiaoshi hanyu
qianghua peixunban], Kizilsu News, reprinted on the Kizilsu Kirghiz
Autonomous Prefecture Government Web site, 16 August 06; ``China
Imposes Chinese Language on Uyghur Schools,'' Radio Free Asia (Online),
16 March 04; ``Uyghur Language Under Attack: The Myth of `Bilingual'
Education in the People's Republic of China,'' Uyghur Human Rights
Project, 24 July 07, 7-9. The XUAR government has started a program to
bring teachers from across the country to teach in XUAR schools. See,
e.g., ``Xinjiang's First Batch of Specially Appointed Teachers Get Pre-
Job Training'' [Xinjiang shoupi ``tegang jiaoshi'' jieshou gang qian
peixun], Xinjiang Economic News, reprinted in Tianshan Net, 30 August
06.
\35\ ``Civil Servant Recruitment in Xinjiang Favors Han Chinese,''
CECC China Human Rights and Rule of Law Update, August 2006, 6. See
also ``Xinjiang Government Says Ethnic Han Chinese Will Get 500 of 700
New Civil Service Appointments,'' CECC Virtual Academy, 7 April 05.
\36\ See, e.g., REAL Implementing Provisions, art. 29; ``Important
Meaning'' [Zhongyao yiyi], Web site of the State Administration for
Ethnic Affairs, 13 July 04; ``Some Suggestions of the State Council on
Continuing To Press Ahead with the Development of the Western Region,''
Xinhua, 22 March 04 (Open Source Center, 22 March 04). See also Gardner
Bovingdon, ``Autonomy in Xinjiang: Han Nationalist Imperatives and
Uyghur Discontent,'' East-West Center Washington 2004, Policy Studies
11, 44; Becquelin, ``Xinjiang in the Nineties,'', 74-76; Stanley W.
Toops, ``The Demography of Xinjiang,'' in Xinjiang: China's Muslim
Borderland, 247.
\37\ ``Xinjiang Focuses on Reducing Births in Minority Areas To
Curb Population Growth,'' CECC China Human Rights and Rule of Law
Update, April 2006, 15-16; ``Xinjiang Reports High Rate of Population
Increase,'' CECC China Human Rights and Rule of Law Update, March 2006,
16-17. A 1953 government census found that Han Chinese constituted 6
percent of the XUAR's population of 4.87 million, while Uighurs made up
75 percent. The 2000 census listed the Han population at 40.57 percent
and Uighurs at 45.21 percent of a total population of 18.46 million.
Demographer Stanley Toops has noted that Han migration since the 1950s
is responsible for the ``bulk'' of the XUAR's high population growth in
the past half century. Stanley Toops, ``Demographics and Development in
Xinjiang after 1949,''East-West Center Washington Working Papers No. 1,
May 04, 1.
\38\ See, e.g., ``Money From Our Kids Has Come'' [Zan haizi jiqian
laile], Tianshan net (Online), 25 June 07; ``160 Rural Women from
Kashgar Go to Tianjin To Apply Their Labor'' [Xinjiang Kashi 160 ming
nongcun funu fu Tianjin wugong], Urumqi Evening News reprinted in
Tianshan Net, 19 March 07.
\39\ See, e.g., ``Uyghur Girls Forced Into Labor Far From Home By
Local Chinese Officials,'' Radio Free Asia (Online), 11 July 07. Radio
Free Asia's Uighur language service also has reported extensively on
labor transfer programs.
\40\ ``Xinjiang Government Continues Controversial `Work-Study'
Program,'' CECC China Human Rights and Rule of Law Update, November
2006, 11. The central government holds tight control over the economy
in the resource-rich XUAR. Calla Wiemer, ``The Economy of Xinjiang,''
in Xinjiang: China's Muslim Borderland, 163-164.
\41\ Opinion on Strengthening the Management of Secondary and
Elementary School Students' Work-Study Service Activities [Guanyu
jiaqiang zhongxiaoxue qingongjianxue laowu huodong guanli de yijian],
issued 8 May 06. See ``Xinjiang Government Continues Controversial
`Work-Study' Program,'' CECC China Human Rights and Rule of Law Update,
November 2006, 11, for an analysis of this opinion.
\42\ See the CECC Political Prisoner Database for more information
about these cases.
\43\ Kadeer was a businesswoman and civic leader in the XUAR who
had advocated for attention to ethnic minority rights. Authorities
detained her in 1999 while she was en route to meet a delegation from
the U.S. government. Kadeer was convicted at a secret trial and
sentenced in 2000 to eight years in prison for ``unlawfully supplying
state secrets or intelligence to entities outside China,'' based on
newspaper clippings she had sent her husband in the United States. For
more information, see the CECC Political Prisoner Database.
\44\ ``Son of Rebiya Kadeer Sentenced to Nine Years in Prison on
Charges of `Secessionism,''' Uyghur American Association (Online), 17
April 07. ``Abdurehim'' is an alternate spelling for Ablikim's second
name.
\45\ ``Rebiya Kadeer's Sons Receive Prison Sentence, Fines, for
Alleged Economic Crimes,'' CECC China Human Rights and Rule of Law
Update, December 2006, 15-16. ``Qahar'' is an alternate spelling for
``Kahar.''
\46\ ``Rebiya Kadeer's Children Held in Custody, Beaten,'' CECC
China Human Rights and Rule of Law Update, June 2006, 2.
\47\ ``Rebiya Kadeer's Employees Released After Seven-Month
Detention,'' CECC China Human Rights and Rule of Law Update, February
2006, 4-5.
\48\ For information on Celil's case, see, e.g., ``China Sentences
Canadian Activist to Life in Prison,'' Associated Press reprinted in
the International Herald Tribune, 19 April 07. ``Canada Protests
Sentencing of Human-Rights Activist by China,'' Toronto Globe and Mail,
20 April 07 (Open Source Center, 20 April 07). The XUAR High People's
Court refused Celil's appeal in July. ``Chinese Court Rejects Appeal of
Convicted Xinjiang Terrorist,'' Xinhua, reprinted in People's Daily
(Online), 10 July 07. For more information on other Uighurs deported to
China or at risk of deportation, see ``Central Asia Summary of Human
Rights Concerns January 2006-March 2007,'' Amnesty International
(Online), 2007.
Notes to Section II--Population Planning
\1\ CECC, 2006 Annual Report, 20 September 06, 109.
\2\ The population increased by roughly 300 million from 1980 to
2005. Statistic cited in Tyrene White, China's Longest Campaign: Birth
Planning in the People's Republic, 1949-2005 (Ithaca: Cornell UP,
2006), 263. For official Chinese government information on its
population planning policies see State Council Information Office,
White Paper on Population in China, 19 December 00. For information on
the number of births prevented, see paragraph 7 of the report.
\3\ Quoted in White, China's Longest Campaign, 238.
\4\ Central Committee of the CCP and State Council Decision
Regarding the Comprehensive Strengthening of Population and Family
Planning Work To Resolve the Population Problem as a Whole [Zhonggong
zhongyang guowuyuan guanyu quanmian jiaqiang renkou he jihua shengyu
gongzuo tongchou jiejue renkou wenti de jueding], issued 17 December
06.
\5\ Guan Xiaofeng, ``Official: Family Planning Policy To Stay,''
China Daily, reprinted on the National Population and Family Planning
Commission of China Web site, 4 July 07.
\6\ The circumstances under which women may bear a second child are
governed by provincial-level regulations. Provincial regulations have
allowed additional children for ethnic minorities and some rural Han
Chinese residents and permitted second births where the first child is
a girl, is disabled, or, in some cases, where both parents are only
children themselves, among other circumstances. For basic codification
of the one-child policy, see Population and Family Planning Law of the
People's Republic of China (Population and Family Planning Law),
adopted 29 December 01, art. 18. For examples of restrictions in local
regulations, see, e.g., Henan Province Population and Family Planning
Regulation [Henansheng renkou yu jihua shengyu tiaoli], adopted 30
November 02, art. 15, 17, 18; Xinjiang Uighur Autonomous Region (XUAR)
Regulation on Population and Family Planning [Xinjiang weiwu'er zizhiqu
renkou yu jihua shengyu tiaoli], art. 15. Article 15 of the Henan
province regulation ``advocates that a couple give birth to one child,
strictly controls the birth of a second child, and prohibits the birth
of a third child.'' Articles 17 and 18 stipulate conditions under which
couples may apply for approval to have a second child, such as where a
first child carries a genetic disability. Article 15 of the XUAR
regulation allows urban Han Chinese couples to have one child, urban
ethnic minority couples and rural Han Chinese couples to have two, and
rural ethnic minority couples to have three. See also Gu Baochang et
al., ``China's Local and National Fertility Policies at the End of the
Twentieth Century,'' Population and Development Review 33(1), March
2007, 132-136. Government officials have attempted to downplay controls
by stating that a strict one-child rule affects less than 36 percent of
the population. See, e.g., ``Many Free To Have More Than One Child,''
Xinhua (Online), 11 July 07.
\7\ Population and Family Planning Law, art. 41. Each provincial-
level government determines its own fees. Measures for Collection of
Social Compensation Fees [Shehui fuyangfei zhengshou guanli banfa],
issued 2 September 02, art. 3, 7. In Beijing, parents who have children
in violation of the local regulation, including unmarried women who are
in violation by giving birth to a child, face fines that range from 3
to 10 times the area's average income. Beijing Measures for Managing
the Collection of Social Compensation Fees [Beijing shi shehui
fuyangfei zhengshou guanli banfa], adopted 5 November 02, art. 5. Fees
are lower in Shandong province, where the fine is set at 30 percent of
local incomes. Shandong Province Measures for Managing the Collection
of Birth Control Social Compensation Fees [Shandongsheng jihua shengyu
shehui fuyangfei zhengshou guanli banfa], issued 1998, art. 4.
\8\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2006, China
(includes Tibet, Hong Kong, and Macau) (Online), 6 March 07.
\9\ Under Article 41 of the Population and Family Planning Law,
where a citizen does not pay the social compensation fee, ``the
administrative department for family planning that makes the decision
on collection of the fees shall, in accordance with law, apply to the
People's Court for enforcement.'' Population and Family Planning Law,
art. 41. U.S. Department of State, Country Reports on Human Rights
Practices--2006; CECC Staff Interview.
\10\ See, e.g., ``Family Planning Faces Challenge from New Rich,''
Xinhua, reprinted in China Daily (Online), 14 December 05. Officials
have said the government will take measures to discourage wealthier
citizens from violating restrictions. Alice Yan and Kristine Kwok,
``One-Child Crackdown Looms for Elite; Officials Consider Stiffer
Penalties for Rich and Famous Who Flout Family Policy,'' South China
Morning Post (Online), 1 March 07.
\11\ ``2,000 Officials Breach `One-Child' Policy in Hunan,'' China
Daily, reprinted on China Elections and Governance Web site, 9 July 07.
The Hunan government amended local regulations on population planning
in September to increase fines for violating the regulations. ``Chinese
Province Raises Fines on Wealthy Flouters of Family Planning Laws,''
Xinhua, 29 September 07 (Open Source Center, 29 September 07).
\12\ ``Chinese Officials Breaching One-Child Policy Denied
Promotion,'' Xinhua, 14 September 07 (Open Source Center, 14 September
07).
\13\ See, e.g., ``State Population and Family Planning Commission
Indicates `Encouraging and Rewarding Fewer Births' To Be Carried Out at
Least 20-30 Years'' [Guojia renkou jishengwei biaoshi ``jiangli
shaosheng'' zhishao zhixing er san shinian], People's Daily (Online),
19 October 06; ``Encouragement and Reward Assistance System To Enter
Implementation Phase'' [Jiangli fuzhu zhidu jiang jinru shishi
jieduan], People's Daily (Online), 16 October 06. Yang Jie,
``Autonomous Region Launches Important Reform on General College
Entrance Examination,'' Xinjiang Daily, 31 May 07 (Open Source Center,
12 June 07).
\14\ National Population and Family Planning Commission Circular on
Printing and Distributing Action Plan for Special Rectification of
Unlawful Births in Cities and Towns [Guojia renkou jishengwei guanyu
yinfa chengzhen weifa shengyu zhuanxiang zhili xingdong fang'an de
tongzhi], issued 24 May 07. For an English translation, see ``China:
Action Plan To Rectify Unlawful Births in Urban Areas,'' Open Source
Center, 16 June 07.
\15\ Convention on the Elimination of All Forms of Discrimination
Against Women, adopted and opened for signature, ratification, and
accession by General Assembly resolution 34/180 of 18 December 79,
entry into force 3 September 81, art. 2, 3, 16(1)(e).
\16\ Convention on the Rights of the Child, adopted and opened for
signature, ratification, and accession by General Assembly resolution
44/25 of 20 November 89, entry into force 2 September 90, art. 2, 3, 4,
6, 26. China has submitted a reservation to Article 6: ``[T]he People's
Republic of China shall fulfil its obligations provided by article 6 of
the Convention under the prerequisite that the Convention accords with
the provisions of article 25 concerning family planning of the
Constitution of the People's Republic of China and in conformity with
the provisions of article 2 of the Law of Minor Children of the
People's Republic of China.'' Office of the UN High Commissioner for
Human Rights, ``Declarations and reservations to the Convention on the
Rights of the Child'' (Online).
\17\ International Covenant on Economic, Social, and Cultural
Rights (ICESCR) adopted by General Assembly resolution 2200 A (XXI) of
16 December 66, entry into force 3 January 76, art. 10(3).
\18\ Population and Family Planning Law, art. 39.
\19\ See, e.g., ``7,000 Forcibly Sterilised in Eastern China,''
South China Morning Post (Online), 12 September 05; Joseph Kahn,
``Advocate for China's Weak Crosses the Powerful,'' New York Times, 20
July 06. For Chinese reporting on events in Linyi, see, e.g.,
``Officials Fired for Forced Abortions,'' Xinhua (Online), 21 September
05; ``PRC Official Confirms Irregularities in Shandong Family Planning
Management,'' Xinhua, 19 September 05 (Open Source Center, 26 September
05).
\20\ See the CECC Political Prisoner Database for more information
on Chen Guangcheng.
\21\ See, e.g., ``Guangxi Town `Tense' After One-Child Protest Put
Down,'' South China Morning Post (Online), 22 May 07; Joseph Kahn,
``Birth Control Measures Prompt Riots in China,'' New York Times
(Online), 21 May 07; ``Government Uses Iron Fist To Force Sterilization
of Female Student'' [Zhengfu tiewan bi nusheng jueyu], Ming Pao
(Online), 22 May 07.
\22\ See, e.g., Chow Chung-yan, ``One-Child Policy Riots Flare Up--
Anger Over Birth-Control Fines Spreads across Guangxi,'' South China
Morning Post (Online), 31 May 07; ``10,000 Riot in Guangxi,'' Tung Fang
Jih Pao, 21 May 07 (Open Source Center, 21 May 07); ``Guangxi Family
Planning Protests Erupt Again in Rong County,'' Radio Free Asia
(Online), 29 May 07. In July, state-controlled media reported that two
men received prisons sentences of one and two years for their
involvement in the protests. ``China Jails Two Men for Birth-Control
Riots,'' Reuters (Online), 23 July 07.
\23\ ``Full-Term Abortion Lawsuit a First for China,'' Caijing
(Online), 25 July 07.
\24\ The pressures created by population planning policies,
combined with entrenched preferences for male children and under-
reporting of female births, have factored into estimates of China's
unbalanced sex ratio. See White, China's Longest Campaign, 203-207, for
more information on sex ratios in China and in other countries with
traditional preferences for boys.
\25\ ``New Policy Will Offer Cash Instead of Kids,'' China Daily
(Online), 16 October 06.
\26\ Decision Regarding the Comprehensive Strengthening of
Population and Family Planning Work To Resolve the Population Problem
as a Whole. Article 35 of the 2002 Population and Family Planning Law
prohibits, but does not penalize, sex-selective abortion. Population
and Family Planning Law, art. 35.
\27\ Statistics cited in U.S. Department of State, ``Country
Reports on Human Rights Practices--2006. There is some variation in
reporting on the sex ratio. See the CECC, 2006 Annual Report, 230
(footnote 34) for an overview of estimates during and before 2006.
\28\ ``Abortion Law Amendment To Be Abolished,'' China Daily,
reprinted in Xinhua, 26 June 06.
\29\ Henan Province Regulation on Prohibiting Non-Medically
Necessary Fetal Sex Determination and Sex-Selective Abortion
[Henansheng jinzhi feiyixue xuyao tai'er xingbie jianding he xuenze
xingbie rengong zhongzhi renshen tiaoli], issued 29 September 06. The
regulation only allows sex determination for cases in which medical
personnel suspect the existence of a congenital disease. For women who
have abided by all population planning requirements and are more than
14 weeks pregnant, abortion is permitted only when a serious hereditary
disease or severe birth defect is detected; if continuation of
gestation will damage the health or life of the pregnant woman; or if
the pregnant woman is divorced or widowed. The regulation does not
alter the legal framework for abortion prior to 14 weeks of gestation
or for women whose pregnancy violates population planning requirements.
The regulation also prohibits the retail sale of abortion-inducing
drugs, limits manufacturers' ability to distribute such
pharmaceuticals, and requires a physician to administer these drugs.
Penalties include fines of up to 2,000 yuan (US$260) for women who have
abortions in violation of the regulation's parameters, and fines of up
to 30,000 yuan (US$3,870) and possible revocation of licenses for
health organizations that do not comply with the new regulation.
\30\ For an overview of such measures, known as a ``1.5-children
policy,'' see Gu, ``China's Local and National Fertility Policies at
the End of the Twentieth Century,'' 133, 138.
\31\ Office to Monitor and Combat Trafficking in Persons, U.S.
Department of State, Trafficking in Persons Report--China, 12 June 07.
\32\ ``Xinjiang Focuses on Reducing Births in Minority Areas To
Curb Population Growth,'' CECC China Human Rights and Rule of Law
Update, April 2006, 15-16; ``Xinjiang Reports High Rate of Population
Increase,'' CECC China Human Rights and Rule of Law Update, March 2006,
16-17. A 1953 government census found that Han Chinese constituted 6
percent of the XUAR's population of 4.87 million, while Uighurs made up
75 percent. The 2000 census listed the Han population at 40.57 percent
and Uighurs at 45.21 percent of a total population of 18.46 million.
Demographer Stanley Toops has noted that Han migration since the 1950s
is responsible for the ``bulk'' of the XUAR's high population growth in
the past half century. Stanley Toops, ``Demographics and Development in
Xinjiang after 1949,''East-West Center Washington Working Papers No. 1,
May 04, 1.
Notes to Section II--Freedom of Residence and Travel
\1\ For a fieldwork-based case study that discusses the impact of
the hukou system, including provisions allowing family members of urban
hukou holders to transfer their status, see Dorothy J. Solinger, ``The
Sad Story of Zheng Erji Who Landed in the City Through the Favors
Reform-Era Policies Bestowed But Rewrote the Rules While Suffering
Wrongs, Once There,'' in Dorothy J. Solinger, ed., Narratives of the
Chinese Economic Reforms (Lewiston, NY: The Edwin Mellen Press, 2005),
113-127, esp. 121, 123, 125.
\2\ See, e.g., Universal Declaration of Human Rights (UDHR),
adopted and proclaimed by General Assembly resolution 217A (III) of 10
December 48, art. 2, 13; International Covenant on Civil and Political
Rights (ICCPR) , adopted by General Assembly resolution 2200A (XXI) of
16 December 66, entry into force 23 March 76, art. 2(1), 12(1), 12(3),
26; the International Covenant on Economic, Social, and Cultural Rights
(ICESCR) adopted by General Assembly resolution 2200A (XXI) of 16
December 66, entry into force 3 January 76, art. 2(2). [See Section X,
``Protection of Internationally Recognized Labor Rights,'' for more
information on China's obligations to comply with internationally
recognized labor rights, include provisions relevant to migrant
workers' status.]
\3\ China is a party to the ICESCR and a signatory to the ICCPR .
The Chinese government has committed itself to ratifying, and thus
bringing its laws into conformity with, the ICCPR and reaffirmed its
commitment as recently as April 13, 2006, in its application for
membership in the UN Human Rights Council. China's top leaders have
previously stated on three separate occasions that they are preparing
for ratification of the ICCPR, including in a September 6, 2005,
statement by Politburo member and State Councilor Luo Gan at the 22nd
World Congress on Law, in statements by Chinese Premier Wen Jiabao
during his May 2005 Europe tour, and in a January 27, 2004, speech by
Chinese President Hu Jintao before the French National Assembly. As a
signatory to the ICCPR, China is required under Article 18 of the
Vienna Convention on the Law of Treaties, to which it is a party, ``to
refrain from acts which would defeat the object and purpose of a
treaty'' it has signed. Vienna Convention on the Law of Treaties,
enacted 23 May 69, entry into force 27 January 80, art. 18.
\4\ UN Committee on Economic, Social and Cultural Rights (CESCR),
``UN Committee on Economic, Social and Cultural Rights: Concluding
observations: People's Republic of China (including Hong Kong and
Macao)'' (Online via UNHCR Refword)13 May 2005. E/C.12/1/Add.107,
para. 15. This committee is charged with monitoring states' compliance
with the ICESCR.
\5\ State Council Notice on Endorsing the Public Security Bureau's
Opinions on Promoting Reform of the Management System for Residence
Permits in Small Towns and Cities [Guowuyuan pizhuan gong'anbu guanyu
tuijin xiaochengzhen huji guanli zhidu gaige yijian de tongzhi], issued
30 March 01. Under these rules, migrants to small cities or towns may
keep their land rights in their villages of origin. For more
information on earlier reforms, see the CECC Topic Paper ``China's
Household Registration System: Sustained Reform Needed To Protect
China's Rural Migrants,'' October 2005.
\6\ See the CECC 2003 Annual Report for more information. CECC,
2003 Annual Report, 2 October 03, 52.
\7\ Regulations on Legal Aid [Falu yuanzhu tiaoli], issued 21 July
03.
\8\ State Council Office Circular on Improving Work on Management
and Services for Migrant Workers in Cities [Guowuyuan bangongting
guanyu zuohao nongmin jincheng wugong jiuye guanli he fuwu gongzuo de
tongzhi], issued 5 January 03.
\9\ State Council Circular Transmitting the Opinion of the
Education and Other Ministries Relating to Further Work on Migrant
Children's Compulsory Education [Guowuyuan bangongting zhuanfa jiaoyubu
deng bumen guanyu jin yibu zuohao jincheng wugong jiuye nongmin zinu
yiwu jiaoyu gongzuo yijian de tongzhi], issued 17 September 03.
\10\ State Council Office Circular Regarding Work on Improving the
Employment Situation for Migrants in Urban Areas [Guowuyuan bangongting
guanyu jin yibu zuo hao gaishan nongmin jincheng jiuye huanjing gongzuo
de tongzhi], issued 27 December 04.
\11\ ``Labor Ministry Officials Remove Regulatory Barrier to
Migrants Seeking Work in Cities,'' CECC Virtual Academy, 4 October 06.
\12\ Central Party Committee, State Council Opinion on Promoting
the Construction of a New Socialist Countryside [Zhong-gong zhongyang
guowuyuan guanyu tuijin shehuizhuyi xin nongcun jianshe de ruogan
yijian], issued 31 December 05. See also ``Communist Party, State
Council Set Rural Reform Goals for 2006,'' CECC China Human Rights and
Rule of Law Update, April 2006, 8.
\13\ State Council Opinion on Resolving Migrant Worker Problems
[Guowuyuan guanyu jiejue nongmingong wenti de ruogan yijian], issued 27
March 2006.
\14\ PRC Compulsory Education Law, adopted 12 April 86, revised 29
June 06, art. 12; ``Amended Compulsory Education Law Would Assure
Migrant Children the Right To Attend School'' [``Yiwu jiaoyufa''
xiuding cao'an baozhang liudong renkou zinu shangxue], CCTV (Online), 1
May 06.
\15\ Resolution Concerning the Question of Delegate Quotas and
Elections for the 11th Session of the National People's Congress''
[Guanyu shiyi jie quanguo renda daibiao ming'e he xuanju wenti de
jueding], Guangdong News (Online), 16 March 07. ``NPC's Approval of Key
Laws Seen as Promotion of Social Justice by Chinese Academics,'' Xinhua
News reprinted by BBC (Online), 16 March 07. Whether the resolution
will give migrant workers a greater voice in practice remains unclear.
In an article from the Xinhua news agency, one migrant worker expressed
concern over election logistics since most migrant workers lack urban
residence registrations, making them ineligible to vote in the cities
where they reside. ``Rural Migrant Workers To Enter China's Top
Legislature,'' Xinhua (Online), 8 March 2007. In January 2006, the
Shanghai local people's congress (LPC) for the first time allowed two
migrant workers from Jiangsu province to attend a session of the
Shanghai LPC as observers. The China Economic Times, a State Council-
sponsored publication, criticized the Shanghai LPC, however, for not
allowing the two migrants to serve as full representatives. It noted
that hukou restrictions bar many migrants from standing for election,
and that none of the 1,000 LPC delegates attending the session
represented Shanghai's 4 million migrant workers. ``State Council
Newspaper Criticizes Lack of Migrant Representation in Shanghai LPC,''
CECC China Human Rights and Rule of Law Newsletter, March 2006, 13-14.
\16\ ``Hukou Reform Submitted To State Council, Legal and Fixed
Place of Residence as Criteria for Shifting Hukou Registration'' [Huji
gaige wenjian bao guowuyuan, hefa guding zhusuo cheng qianyi tiaojian],
Guangdong News (Online), 23 May 97. ``Many Difficulties Remain in Hukou
Reform, MPS Launches Investigation and Research into Legislating a
Hukou Law [Huji gaige cun zhuduo nandian gong'anbu qidong hukoufa lifa
diaoyan],'' Legal Daily (Online), 20 June 07. There has been some
dispute over the document's submission to the State Council. For
background see Carl Minzner, ``Hukou Reforms Under Consideration,''
Chinese Law and Politics Blog, 4 June 07.
\17\ The current reforms bear close resemblance to earlier
proposals put forth by central government officials. Nevertheless, one
scholar has suggested that the current reforms are more liberal than
past efforts in that they only demand citizens meet a residence
requirement, rather than both residence and income requirements, for
transferring hukou. See Carl Minzner, ``Hukou Reforms Under
Consideration,'' Chinese Law and Politics Blog, 4 June 07.
\18\ See Max Tunon, ``Internal Labour Migration in China: Features
and Response,'' International Labour Organization (Online), April 2006,
10, 22-23, 35.
\19\ For more information on local regulations that condition hukou
transfers on meeting such criteria, see ``China's Household
Registration System: Sustained Reform Needed To Protect China's Rural
Migrants,'' 4-5.
\20\ Only certain types of rental housing qualify. The reforms
permit other groups of migrants to obtain an urban hukou based on
economic and educational criteria similarly used in other localities to
restrict the number of migrants eligible to change their hukou status.
Chengdu Municipal Party Committee, Chengdu City People's Government
Opinion Concerning Deepening Residence Registration Reform and
Reforming and Deepening the Integration of Cities and Towns (Trial)
[Zhong-gong chengdu shiwei chengdushi renmin zhengfu guanyu shenhua
huji zhidu gaige gaishen shenru tuijin cheng xiang yitihua de yijian
(shixing)], issued 20 October 06, art. 2.
\21\ ``Shenzhen Municipal Authorities Announce Tighter Controls
Over Migrant Population,'' CECC China Human Rights and Rule of Law
Update, September 2005, 9-10.
\22\ ``Shenyang City Government Revokes Reforms to Temporary
Residence Permit System,'' CECC China Human Rights and Rule of Law
Update, February 2006, 9-10.
\23\ ``Beijing Eliminates Regulations on the Management of
Migrants'' [Beijing feizhi wailai renyuan guanli tiaoli], Beijing News
(Online), 26 March 05.
\24\ ``Farmers Who Enter Cities and See a Doctor Can Be
Reimbursed'' [Nongmin jincheng kanbing ke xiangshou baoxiao], Beijing
News (Online), 23 August 05.
\25\ Ma Lie, ``Xi'an District Grants Migrant Farmers Equal
Treatment,'' China Daily (Online), 1 September 06 (Open Source Center,
1 September 06).
\26\ ``Chongqing High People's Court Issues Provisions, Traffic
Accident Compensation To Be Carried Out According to `Same Life, Same
Value' [Principle]'' [Chongqing gao yuan chutai guiding, chehuo
peichang jiang zhixing ``tongming tongjia''], Xinhua (Online), 19
October 06. A Chongqing court enforced this principle in December 2006
when it ordered that the parents of a child killed in a traffic
accident be compensated at the rate for urban hukou holders, despite
the fact that they were migrant workers with non-Chongqing hukou
status. ```Same Life, Same Value' Ruling in Chongqing's First Urban-
Rural Resident Car Accident Compensation Case'' [Chongqing shouli
chengxiang jumin chehuo peichang an `tongming tongjia' panjue], Xinhua
(Online), 13 December 06. For more information on compensation levels,
see the CECC 2006 Annual Report, 20 September 06, 117, and ``Lawyer
Petitions for Constitutional Review of Discriminatory SPC
Interpretation,'' CECC China Human Rights and Rule of Law Update, June
2006, 8-9.
\27\ ``Supreme People's Court To Release Determination on Issue of
`Same Life, Different Value' [Zui gao fayuan ni chutai xiangguan
jueding jiejue ``tongming bu tongjia'' wenti], Xinhua (Online), 14
March 07. In 2003, the SPC issued a judicial interpretation mandating a
lower rate of compensation for rural hukou holders. ``Supreme People's
Court's Judicial Interpretation Regarding Compensation Cases for
Personal Injuries (2003)'' [Zui gao renmin fayuan guanyu shenli renshen
sunhai peichang anjian shiyong falu ruogan wenti de jieshi], Supreme
People's Court (Online), 4 December 03, art. 29.
\28\ State Council Office Circular on Improving Work on Management
and Services for Migrant Workers in Cities [Guowuyuan bangongting
guanyu zuohao nongmin jincheng wugong jiuye guanli he fuwu gongzuo de
tongzhi], issued 5 January 03.
\29\ ``Number of Temporary Residents Nationwide is 86,730,000,
Floating Population Needs Establishment of Socialization Management
Model'' [Quanguo dengji zanzhu renkou 8673 wan ren, liudong renkou ying
jianli shehuihua guanli moshi], Legal Daily (Online), 26 October 05.
\30\ Henan Provincial Party Committee and Government Circular on
``A Program for the Construction of a Peaceful Henan'' [Henan sheng wei
sheng zhengfu guanyu ``ping'an henan jianshe gangyao'' de tongzhi], PRC
Central Government (Online), 26 April 06.
\31\ ICCPR, art. 12. General Comment 27 to this article states,
``The refusal by a State to issue a passport or prolong its validity
for a national residing abroad may deprive this person of the right to
leave the country of residence and to travel elsewhere.'' Human Rights
Committee, General Comment 27, Freedom of Movement (Art.12), U.N. Doc
CCPR/C/21/Rev.1/Add.9 (1999), para. 9.
\32\ PRC Law on Passports, adopted 29 April 06, art. 13(7). For an
example of a beneficial provision within the law, see, e.g., Article 6,
which stipulates time limits for officials to approve applications and
allows applicants to contest rejected applications.
\33\ Scholars and NGO staff have debated the legal bases
surrounding the government's recent actions toward Yang. ``Welcome
Return for Chinese Dissident, Others Not Free To Travel,'' Dui Hua
(Online), 27 August 07; Donald C. Clarke, ``Yang Jianli and China's
Passport Law,'' Chinese Law Prof Blog (Online), 28 August 07.
\34\ ``Yang Jianli's Application for Passport To Go to U.S. Still
Has Not Been Approved'' [Yang Jianli shenqing huzhao lijing fu mei reng
wei bei pizhun], Radio Free Asia (Online), 15 June 07.
\35\ See the CECC Political Prisoner Database for more information
on Yang's case. Although initially charged with illegal entry, he was
later charged with espionage for alleged connections with Taiwan.
\36\ ``Attorney Tang Jingling Brings Administrative Suit Against
Customs for Taking His Passport and Preventing Him from Leaving the
Country'' [Tang Jingling lushi dui haiguan kouliu huzhao zuzhi ta
chuguo tiqi xingzheng susong], Chinese Human Rights Defenders (Online),
6 December 06.
\37\ Claudia Blume, ``International PEN Concerned About Writers'
Freedom of Expression in China,'' Voice of America (Online), 6 February
07.
\38\ Anita Chang, ``China Bars Dissident's Wife From Leaving,''
Associated Press (Online), 11 June 07. ``Zeng Jinyan and Yao Lifa
Prevented from Leaving Country To Attend Human Rights Conference in
Geneva'' [Zeng Jinyan Yao Lifa bei jinzhi chujing dao Rineiwa chuxi
guoji renquan huiyi], Radio Free Asia (Online), 11 June 07.
\39\ ``Mongolian Dissident's Passport Application Denied for
`Possible Harm to State Security and National Interests,''' Southern
Mongolian Human Rights Information Center (Online), 8 August 07.
\40\ ``Persecution of Zheng Enchong Must Stop: HRIC,'' Human Rights
in China (Online), 22 August 07.
\41\ Maureen Fan, ``Wife of Chinese Activist Detained at Beijing
Airport, Authorities Forcibly Return Her to Home Village,'' Washington
Post (Online), 25 August 07.
\42\ ``CAA Urges Chinese Government To Release Rights Lawyer Gao
Zhisheng and his Family Members,'' China Aid Association (Online), 27
September 07. For more information on Gao, see the CECC Political
Prisoner Database.
\43\ ``China Confiscates Muslims' Passports,'' Radio Free Asia
(Online), 28 June 07. See also ``Activist: Members of Muslim Minority
Group in China Forced To Surrender Their Passports,'' Associated Press,
reprinted in International Herald Tribune, 20 July 07.
\44\ Yang Yingchun, ``Ismail Tiliwaldi, While Speaking at an
Autonomous Region-Wide Religion Work Meeting, Calls for Stronger
Management Over Pilgrimage and the `Two Religions' To Safeguard the
Masses' Interest,'' Xinjiang Daily, 11 July 09 (Open Source Center, 13
July 07).
\45\ ``China Sentences Underground Pastor to 7.5 Years in Prison,''
Agence France Presse (Online), 8 July 06, reprinted on the China Aid
Association Web site. See the CECC Political Prisoner Database for more
information.
\46\ ``Two Priests Detained in Wenzhou After Arrest on Return from
Europe,'' Union of Catholic Asian News (UCAN), 3 October 06;
``Underground' Chinese Catholic Priests Charged, Likely To Face
Trial,'' UCAN (Online), 26 October 06. ``Two Underground Priests From
Wenzhou Soon To Be Freed,'' AsiaNews, 17 May 07; ``Two Underground
Priests, Arrested After Pilgrimage, Sentenced Six Months After
Arrest,'' UCAN (Online), 16 May 07. Authorities released Shao from
prison in May to obtain medical treatment. ``Jailed Wenzhou Priest
Released Provisionally For Medical Treatment,'' UCAN, 30 May 07.
Authorities released Jiang in August. ``Second Of Two Jailed Wenzhou
Priests Released, Diagnosed With Heart Conditions,'' UCAN, 29 August
07. See the CECC Political Prisoner Database for more information.
Jiang Surang is also known by the name Jiang Sunian.
\47\ Timothy Chow, ``Chinese House Church Historian Denied ID
Card,'' Compass Direct News (Online), 17 February 06, reprinted on the
China Aid Association Web site.
Notes to Section II--Status of Women
\1\ CECC, 2003 Annual Report, 2 October 03, 47.
\2\ Ibid., 47-49; CECC, 2004 Annual Report, 5 October 04, 56-57;
CECC, 2006 Annual Report, 20 September 06, 97-98.
\3\ CECC, 2004 Annual Report, 55-56; CECC, 2005 Annual Report, 11
October 05, 67, 69; CECC, 2006 Annual Report, 99.
\4\ CECC, 2004 Annual Report, 56-58; CECC, 2005 Annual Report, 67-
68; CECC, 2006 Annual Report, 97-99.
\5\ CECC, 2005 Annual Report, 67; CECC, 2006 Annual Report, 97-98.
\6\ PRC Constitution, art. 48. Article 48 declares that women are
equal to men and names women as a ``vulnerable social group'' requiring
special protection.
\7\ The State Council Women's Development Program, 2001-2010
[Zhongguo funu fazhan gangyao, 2001-2010], May 2001.
\8\ PRC Law on the Protection of Women's Rights and Interests,
enacted 3 April 92, amended 28 August 05; CECC, 2005 Annual Report, 67-
68.
\9\ These include Liaoning province (2006), Heilongjiang province
(2006), Jiangxi province (2006), Hunan province (2006), Shaanxi
province (2006), Xinjiang province (2006), Wenzhou municipality (2006),
Shanghai municipality (2007), and Guangdong province (2007), among
others. See ``Wenzhou City Issues New Domestic Violence Provisions,''
CECC China Human Rights and Rule of Law Update, December 2006, 16-17;
``Regarding the Amended Shanghai Law on the Protection of Women's
Rights and Interests Implementing Measures,'' People's Daily (Online),
11 May 07; Xulin and Sun Xiaosu, ``Married-out Women in Guangdong
Province Gain Hope,'' China Women's News, reprinted in Women Watch--
China (Online), 7 June 07.
\10\ ``Regarding the Amended Shanghai Law on the Protection of
Women's Rights and Interests Implementing Measures,'' People's Daily.
\11\ CECC, 2002-2004 Annual Reports.
\12\ CECC Staff Interview; ``Wenzhou City Issues New Domestic
Violence Provisions,'' CECC China Human Rights and Rule of Law Update,
16-17; ``System of Laws and Policies Protecting Women Take a Step
Closer Toward Completion'' [Fu bao falu zhengce tixi jinyibu wanshan],
Legal Daily (Online), 29 January 07; ``Regarding the Amended Shanghai
Law on the Protection of Women's Rights and Interests Implementing
Measures,'' People's Daily; Wang Zhuqiong, ``New Move To Stem Domestic
Violence,'' China Daily (Online), 21 July 07.
\13\ Committee on the Elimination of Discrimination Against Women,
Concluding Comments of the Committee on the Elimination of
Discrimination Against Women, Advanced Unedited Version, Thirty-sixth
session, 7-25 August 06.
\14\ PRC Marriage Law, enacted 10 September 80, amended 28 April
01, art 3; PRC Law on the Protection of Women's Rights and Interests,
art. 46; ``Same Domestic Violence Accusation, Different Results in
Shanghai and Baotou Court Cases; Expert Calls for Unified Standard''
[Tongshi shou nuesha fu Shanghai Baotou pan butong zhuanjia: tongyi
biaozhun], Legal Daily (Online), 30 March 06; Human Rights in China
(Online), ``Implementation of the Convention of the Elimination of All
Forms of Discrimination Against Women in the People's Republic of
China, A Parallel NGO Report,'' June 2006.
\15\ For example, with regards to domestic violence survivors
bearing the burden in bringing complaints, see the PRC Marriage Law,
arts. 43, 45.
\16\ ``Domestic Violence in Spotlight,'' China Daily (Online), 2
August 07; ``Survey of Young Female Migrant Workers Reveals 70 Percent
Have Been Sexually Harassed'' [Hunan nianqing nuxing nongmingong
diaocha 7 cheng dagongmei zaoguo xingsaorao], Xinhua (Online), 15 May
06.
\17\ CECC, 2003 Annual Report, 47-48.
\18\ Ibid., 48.
\19\ Committee on the Elimination of Discrimination Against Women,
Concluding Comments of the Committee on the Elimination of
Discrimination Against Women, 4.
\20\ CECC, 2006 Annual Report, 99.
\21\ CECC, 2004 Annual Report, 56.
\22\ ``Women Contribute to over 40% GDP,'' China News, reprinted in
All-China Women's Federation (Online), 17 May 07.
\23\ Guo Aibing, ``More Women Fill Top Posts, but Still Wield
Little Authority,'' South China Morning Post (Online), 16 May 07;
``Women Contribute to over 40% GDP,'' China News; ``Minimum Hiring Rate
for Women Employees Must Be 30%'' [Luyong gongwuyuan nuxingbili bude
diyu 30%], China Women's News (Online), 15 January 07.
\24\ ``Chengdu Imposes Gender Quota on Local Government's Leading
Positions'' [Chengdu guiding quxian si da banxi zhishao ge you yi ming
nu ganbu], Eastday Net (Online), 7 November 06; Standing Committee of
Heilongjiang People's Congress, ``Law Guaranteeing Gender Ratio of
Heilongjiang People's Congress, Implementing Women's Law, Appears''
[Renda nu daibiao bili tigao dao 30% funu quanyi baozhang fa shishi
banfa chutai], 31 October 06; ``Funds for Women's Development Work are
No Lower than 0.3 yuan Per Person'' [Funu gongzuo jingfei meiren mei
nian bu diyu 0.3 yuan], China Women's News (Online), 31 October 06.
\25\ CECC, 2005 Annual Report, 69-70.
\26\ Specifically, women accounted for 27.8 percent of all reported
HIV/AIDS cases in 2006, an increase from 19.4 percent in 2000. ``More
than a Quarter of AIDS Patients in China are Women,'' Xinhua, reprinted
in Women of China (Online), 5 June 07.
\27\ ``Report: Unsafe Sex Major Cause of HIV Infection,'' China
Daily (Online), 20 August 07.
\28\ CECC, 2003 Annual Report, 49.
\29\ ``China's Suicide Rate Among World's Highest,'' China Daily
(Online), 11 September 07; Christopher Allen, ``Traditions Weigh on
China's Women,'' BBC (Online), 20 June 06; World Health Organization,
``Suicide Huge but Preventable Public Health Problem,'' 10 September
04; Maureen Fan, ``In Rural China, a Bitter Way out,'' Washington Post
(Online), 15 May 07.
\30\ ``Domestic Violence is the Main Reason Chinese Rural Women
Commit Suicide'' [Jiating baoli shi daozhi zhongguo nongcun funu zisha
de zhuyin], Radio Free Asia (Online), 28 November 06; CECC, 2006 Annual
Report, 99; Fan, ``In Rural China, a Bitter Way out.''
\31\ Over the period from 1991 to 2004, ``national statistics
show[ed] an overall decline in maternal mortality from 80 to 48.3
deaths per 100,000 live births.'' There is a divide between urban and
rural areas, however, as the maternal mortality rate in small and
medium cities had declined to 15.3 deaths per 100,000 live births by
2004, compared to 96 deaths per 100,000 in remote rural areas. The gap
has widened since 1996. China Development Brief (Online), ``Drop in
Maternal and Child Mortality Slow and Uneven,'' 18 January 07.
\32\ Human Rights in China, ``Implementation of the Convention of
the Elimination of All Forms of Discrimination Against Women in the
People's Republic of China,'' 15.
\33\ A 2005 report by China Children's Center reported 99.14
percent enrollment rates for girls, and 99.16 percent enrollment rates
for boys. ``Girls and Boys have Basically the Same Rate of Entry into
School,'' Xinhua (Online), 9 December 06. See also, China Statistical
Yearbook 2006, Figure 21-5 titled ``Number of New Students Enrollment
by Level and Type of School.''
\34\ ``China Still Has 100 Million Illiterate People; Of that, 70%
are Women'' [Wuguo haiyou wenmang 1 yi duo qizhong nuxing yu qicheng],
People's Daily (Online), 17 October 06; The State Council Women's
Development Program, 2001-2010.
\35\ ``Spring Bud Program Helps 2622 Girls Stay in School over 11
Years in Ningxia'' [``Chunlei nainai'' jianglijuan: 11 nian zizhu 2622
ming shixue nutong], Xinhua (Online), 14 November 06; ```Spring Bud
Program' Helps 1,600,000 Girls Return to School'' [``Chunlei jihua''
bang 160 wan nutong chongfan xiaoyuan], China Women's News (Online), 18
October 06.
\36\ Xulin and Sun Xiaosu, ``Married-out Women in Guangdong
Province Gain Hope.''
\37\ Ibid.; ``Women Sue Village Committees for Denying Them Land
Rights,'' CECC China Human Rights and Rule of Law Update, July 2006, 8.
\38\ Xulin and Sun Xiaosu, ``Married-out Women in Guangdong
Province Gain Hope.''
\39\ Ibid.
\40\ PRC Organic Law of Village Committees, enacted 4 November 98,
art. 20. Article 20 states that ``no villagers charter of self-
government, rules and regulations for the village, villagers pledges or
matters decided through discussions by a villagers assembly or by
representatives of villagers may contravene the Constitution, laws,
regulations, or State policies, or contain such contents as infringing
upon villagers rights of the person, their democratic rights or lawful
property rights.''
\41\ Xulin and Sun Xiaosu, ``Married-out Women in Guangdong
Province Gain Hope.''
\42\ Ibid.
\43\ Ibid.
\44\ CECC Staff Interview; Xu Yushan, ``A Preliminary Analysis of
the Relationship between the Women's Federation and Other Women's
Organizations'' [Qianxi fulian yu qita funuzuzhi de guanxi], Collection
of Women's Studies [Funu yanjiu luncong], No. 2, March 2004, 44-48.
\45\ China Women's University established a legal center for women
and children in September 2006 that offers free legal services
primarily to women and children, but also to other ``vulnerable
groups'' such as the elderly and the disabled. Legal services include
counseling over the telephone, counseling in person, drafting documents
on behalf of someone else, mediation, and litigation. ``China Women's
University Establishes Legal Center for Women and Children'' [Zhonghua
nuzi xueyuan chengli funu ertong falu fuwu zhongxin], China Women's
News, reprinted in Women Watch--China (Online), 26 September 06. In
September 2006, the Beijing Lawyers Association Marriage and Family
Special Committee held a seminar that focused on legal protections of
women's land rights, seminars are held to brainstorm questions and
raise suggestions to the Legislation Department, regarding the land
rights and interests of women, especially married-out women, divorced
women, and widows. ``Seminar on Legal Protection of Women's Land
Rights'' [Tudi yong yi quan falu shiwu wenti yantaohui], Women Watch--
China (Online), 1 October 06.
\46\ CECC, 2006 Annual Report, 98.
\47\ Ibid., 98.
\48\ CECC, 2005 Annual Report, 72.
\49\ ``Chinese Villages Have Roughly 47 Million `Left Behind
Women''' [Zhongguo nongcun ``liushou funu'' yue 4700 wan], Radio Free
Asia (Online), 8 November 06.
\50\ ``Older Pregnant Woman Unexpectedly Dismissed by Company''
[Gaoling bailing huaiyun jing bei gongsi jiegu], New Express, reprinted
in Women Watch--China (Online), 3 November 06.
\51\ The survey data was collected from 6,595 questionnaires handed
out in 416 villages and four cities. ``Female Migrants Suffering at
Work,'' China Daily, 30 November 06 (Open Source Center, 30 November
06).
\52\ Liu Yun and Yao Jian, ``Legal Aid for Female Migrant
Workers,'' China Women's News, reprinted in Women Watch--China
(Online), 21 June 07.
\53\ Ibid.
\54\ ``Over 60 Million Female Workers Have Maternity Insurance,''
Women of China (Online), 21 June 07. The Yunnan Provincial Health
Bureau launched a project to raise public awareness of HIV/AIDS, with
the aim of educating 80 percent of its female population. ``Project
Launched To Protect Women from AIDS,'' China News (Online), 13 July 07.
Some local governments have established programs to provide loans and
training to women who have lost their jobs. Liu Yun and Yao Jian,
``Legal Aid for Female Migrant Workers.''
\55\ ``Why Can't Women Retire at the Same Age as Men'' [Nuren
pingsha wuquan yu nanren tongling tuixiu], Southern Weekend (Online),
13 October 05.
\56\ ``Why Can't Women Retire at the Same Age as Men,'' Southern
Weekend; CECC, 2005 Annual Report, 67.
\57\ ``Hubei Transportation Company: Female Attendants Whose Weight
Exceeds 60 Kilograms Must Step Down'' [Nu chengwuyuan tizhong chaoguo
60 gongjin jiang xiagang], Radio Free Asia (Online), 7 October 06.
\58\ China Gender Equality and Women's Development Report [Zhongguo
xingbie pingdeng yu funu fazhan baogao], ed. Tan Lin (Beijing: Social
Sciences Academic Press, 2006), reprinted in China Net (Online).
Notes to Section II--Human Trafficking
\1\ Office to Monitor and Combat Trafficking in Persons, U.S.
Department of State, Trafficking in Persons Report--China, 12 June 07,
80.
\2\ PRC Protection of Minors Law, enacted 4 September 91, amended
29 December 06.
\3\ Ibid., art. 41.
\4\ ``More Forced into Labor, Prostitution,'' China Daily (Online),
27 July 07.
\5\ National Bureau of Statistics, China Statistical Yearbook 2006,
Table 23-11; ``Ministry of Public Security Strengthens the Combating of
Crimes of Trafficking in Women and Children'' [Zhongguo gongan jiguan
jiada daji guaimai funu ertong fanzui lidu], Xinhua (Online), 26 July
07.
\6\ U.S. Department of State, Trafficking in Persons Report--China,
80.
\7\ ``More Forced into Labor, Prostitution,'' China Daily.
\8\ Experts believe that Chinese law only considers those under the
age of 14 to be ``minors'' and automatic victims of trafficking, with
no need for personnel to have them examined for signs of coercion or
the use of force. CECC Staff Correspondence; ``Ministry of Public
Security Official: Human Trafficking for the Purposes of Forced Labor
and Sexual Exploitation Has Increased'' [Gonganbu guanyuan: yi boxue he
seqing wei mudi de renkou guaimai shangsheng], China Daily, reprinted
in China Economic Net (Online), 27 July 07. See, for example, the PRC
Criminal Law, enacted 1 July 79, amended 14 March 97, 25 December 99,
31 August 01, 29 December 01, 28 December 02, 28 February 05, 29 June
06, art. 240.
\9\ UNICEF (Online), ``China: Trafficking of Children and Women,''
last visited 4 October 07; ``China To Issue An Anti-Trafficking Plan''
[Zhongguo jiang zhiding guojia fan renkou guaimai xingdong jihua],
Xinhua (Online), 12 July 06.
\10\ U.S. Department of State, Trafficking in Persons Report--
China, 80.
\11\ Ibid.
\12\ CECC Staff Correspondence.
\13\ UNICEF, ``China: Trafficking of Children and Women;'' ``China
To Issue An Anti-Trafficking Plan,'' Xinhua; ``Hunan Court Sentences
Infant Traffickers; New Orphanage Standards Due Soon,'' CECC China
Human Rights and Rule of Law Update, April 2006, 3-4; ``Social Service
Organizations Involved in Two Child Trafficking Cases,'' CECC China
Human Rights and Rule of Law Update, January 2006, 11; Bureau of
Democracy, Human Rights, and Labor, U.S. Department of State, Country
Reports on Human Rights Practices--2006, China (includes Tibet, Hong
Kong, and Macau), 6 March 07, sec. 5.
\14\ U.S. Department of State, Country Reports on Human Rights
Practices--2006, China, sec. 5.
\15\ ``Social Service Organizations Involved in Two Child
Trafficking Cases,'' CECC China Human Rights and Rule of Law Update,
11; ``Hunan Court Sentences Infant Traffickers; New Orphanage Standards
Due Soon,'' CECC China Human Rights and Rule of Law Update, 3-4; Cindy
Sui, ``Baby Trafficking in PRC's Rural Areas `Widespread,''' Agence
France-Presse, 5 February 05 (Open Source Center, 10 February 05).
\16\ U.S. Department of State, Trafficking in Persons Report--
China, 80.
\17\ United Nations Office on Drugs and Crime (Online), ``The
United Nations Convention Against Transnational Organized Crime and Its
Protocols,'' last viewed 4 October 07; UN Convention Against
Transnational Organized Crime, adopted by General Assembly resolution
55/25 of 15 November 2000, entry into force 29 September 03; Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children (commonly known as Palermo Protocol), adopted by
General Assembly resolution 55/25 of 15 November 2000, entry into force
on 25 December 03.
\18\ Convention on the Elimination of All Forms of Discrimination
Against Women, adopted by General Assembly resolution 34/180 of 18
December 79, entry into force 3 September 81, art. 6; Convention on the
Rights of the Child, adopted by the General Assembly resolution 44/25
of 20 November 1989, entry into force 2 September 90, art. 35; Human
Trafficking.org (Online), ``Government of China's Plan of Action To
Prevent, Protect, Prosecute and Reintegrate,'' last viewed 4 October
07.
\19\ PRC Law on the Protection of Women's Rights and Interests,
enacted 3 April 92, amended 28 August 05, art. 39.
\20\ ``China To Issue a National Anti-Trafficking Plan of Action,''
Xinhua (Online), 12 July 06; ``Panel Set To Target Human Trafficking,''
China Daily (Online), 4 September 07.
\21\ For example, the Ministry of Justice launched a three month
campaign in 2000 that reportedly resulted in the rescue of some 10,000
girls. CECC, 2003 Annual Report, 2 October 03, 53. From 2001 to 2003,
the Ministry of Public Security initiated a series of ``Strike Hard''
campaigns that reportedly solved 20,360 cases involving 42,215 victims.
CECC, 2004 Annual Report, 5 October 04, 137, endnote 527.
\22\ Murray Scot Tanner, ``State Coercion and the Balance of Awe:
The 1983-1986 `Stern Blows' Anti-Crime Campaign,'' China Journal, July
2000.
\23\ Office to Monitor and Combat Trafficking in Persons, U.S.
Department of State, Trafficking in Persons Interim Assessment--China,
19 January 07.
\24\ Ibid.
\25\ Ibid.
\26\ U.S. Department of State, Trafficking in Persons Report--
China, 80; ``Social Service Organizations Involved in Two Child
Trafficking Cases,'' CECC China Human Rights and Rule of Law Update,
11. See also, CECC, 2006 Annual Report, 20 September 06, 100.
\27\ Murray Scot Tanner and Eric Green, ``Principals and Secret
Agents: Central versus Local Control over Policing and Obstacles to
`Rule of Law' in China,'' 191 China Quarterly 644, 666 (2007).
\28\ Ibid.
\29\ U.S. Department of State, Trafficking in Persons Report--
China, 80; ``Vietnamese Police Arrests Three for Trafficking of
Children to China,'' Agence France-Presse, 17 July 07 (Open Source
Center, 17 July 07); ``China, US agree To Enhance Coop on Global
Issues,'' Xinhua (Online), 10 August 06.
\30\ ``ILO, China Join To Combat Trafficking in Children and
Women,'' Xinhua, reprinted in China.org (Online), 12 July 03;
International Organization for Migration (Online), ``China Profile,''
July 2007; U.S. Department of State, Trafficking in Persons Interim
Assessment--China.
\31\ U.S. Department of State, Trafficking in Persons Interim
Assessment--China; U.S. Department of State, Trafficking in Persons
Report--China, 81.
\32\ ``Panel Set To Target Human Trafficking,'' China Daily. See
also, ``Ministry of Public Security Strengthens the Combating of Crimes
of Trafficking in Women and Children,'' Xinhua.
Notes to Section II--North Korean Refugees
\1\ CECC Staff Interviews; Joel Charney, ``Acts of Betrayal: The
Challenge of Protecting North Koreans in China,'' Refugees
International, 12 May 05.
\2\ International Crisis Group, Perilous Journey, Asia Report No.
122, 26 October 2006, 1.
\3\ Department of State, 2007 Trafficking in Persons Report.
\4\ Bureau of Democracy, Human Rights and Labor, U.S. Department of
State, Country Reports on Human Rights Practices--2006, China (includes
Tibet, Hong Kong, and Macau), 6 March 6, 07.
\5\ Kim Young Jin, ``Chinese Security Officer in Yenji Testifies,
`Increase in Arrests at the End of the Year,''' Daily NK, 1 February 1,
05.
\6\ Kim Young Jin, ``China Arrests, Shortly Repatriated to North
Korea,'' Daily NK, 26 June 07; Donna M. Hughes, ``How Can I Be Sold
Like This?: The Trafficking of North Korean Women Refugees,'' National
Review (Online), 19 July 05; International Crisis Group, ``Perilous
Journeys: The Plight of North Koreans in China and Beyond,'' Asia
Report No. 122--26 October 06, 6; Ronald Schaefer, ``The Forgotten
Refugees,'' OhmyNews Web site, 9 October 06.
\7\ Humanitarian workers assisting refugees have reported that many
North Korean refugees attempt to reach Mongolia, and as a result China
is constructing six new prisons in this region. See Charlotte Eager,
``Korea's Oskar Schindler,'' Daily Mail, 30 June 07. On the
construction of new facilities on China's North Korean border, see
Melanie Kirkpatrick, ``Let Them Go: China Should Open its Border to
North Korean Refugees,'' Wall Street Journal (Online), 15 October 06.
\8\ Convention Relating to the Status of Refugees, 28 July 51,
United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons convened under General Assembly
resolution 429 (V) of 14 December 50, art. 33; China acceded to the
Convention on September 24, 1982. ``MFA Spokesman Calls North Korean in
China `Illegal Migrants' and `Not Refugees','' CECC Virtual Academy
(Online), 3 October 06.
\9\ ``Foreign Ministry Spokesman Qin Gang's Regular Press
Conference on 19 June, 2007,'' PRC Ministry of Foreign Affairs Web
site, 20 June 07.
\10\ ``Democratic People's Republic of Korea Ministry of State
Security, People's Republic of China Ministry of Public Security,
Mutual Cooperation Protocol for the Work of Maintaining National
Security and Social Order in the Border Area,'' 12 August 1986,
reprinted on the Rescue the North Korean People Urgent Action Network
(RENK) Web site. According to James Seymour, RENK obtained and
translated the document in December 2002. Seymour writes that ``this
document cannot be authenticated, but it does not seem implausible.''
On the 1998 agreement, see also Cho Kye-ch'ang, ``Adds Article on
Reinforcing Protection of a Special Train with Kim Jung-il on; Scope of
Illegal Border-Crossing Expanded; Joint Countermeasures Included to
Prepare Against Armed North Korean Escapees,'' Yonhap (Online), 22
January 07.
\11\ James D. Seymour, ``China: Background Paper on the Situation
of North Koreans in China,'' Writenet, January 2005, 4-6.
\12\ When China acceded to the Refugee Convention in 1982, it
committed to honoring all provisions under the Convention and made only
two reservations, neither of which is related to Article 33 on
refoulement. Under Articles 26 and 42(2) of the Vienna Convention on
the Law of Treaties, China's separate bilateral agreement with North
Korea would not exempt it from compliance with its treaty obligations.
\13\ Convention Relating to the Status of Refugees, art. 1.
\14\ The United Nations Special Rapporteur on Human Rights in North
Korea, ``Question of the Violation of Human Rights and Fundamental
Freedom in any Part of the World: Situation of Human Rights in the
Democratic People's Republic of Korea,'' 10 January 05, 13.
\15\ ``Government Allows North Korean Refugees to Travel Directly
to the United States,'' CECC Virtual Academy 28 August 06.
\16\ Human Rights Watch, ``North Korea: Harsher Policies Against
Border-Crossers,'' March 2007, 7-8; Another source dates this tougher
policy from 2005. Kwon Jeong Hyun, ``10 Years of Defector Succession''
Daily NK, 16 May 07.
\17\ Human Rights Watch, 4-9.
\18\ Norma Kang Muico, ``An Absence of Choice: The Sexual
Exploitation of North Korean Women in China,'' Anti-Slavery
International, 2005.
\19\ International Crisis Group, 18, citing David Hawk, ``The
Hidden Gulag: Exposing North Korea's Prison Camps,'' U.S. Committee for
Human Rights in Korea, October 2003; Kim Rahn, ``Female Inmates in
North Face Compulsory Abortion,'' Korea Times, 29 September 06; Michael
Sheridan, ``On the Death or Freedom Trail with Kim's Starving
Fugitives,'' Times Online (London), 3 December 06. Kwon Jeong Hyun,
``10 Years of Defector Succession,'' Daily NK, 16 May 07.
\20\ Stephen Haggard and Marcus Noland, ``The North Korean Refugee
Crisis: Human Rights and International Response,'' U.S. Committee for
Human Rights in North Korea, 2006, 37-40.
\21\ Haggard and Noland, 38-39.
\22\ Haggard and Noland, 38; Convention Relating to the Status of
Refugees, art. 35.
\23\ Nicholas D. Kristof, ``Escape from North Korea,'' New York
Times (Online), 4 June 07; ``China Imprisons N. Korean Defector Ring,''
Chosun Daily (Online) 28 May 07.
\24\ ``NK Refugee Supporter Released in China,'' Daily NK, 29
November 06.
\25\ The State Council included the regulation on its 2006
Legislative Plan, and a January 2006 State Council General Office
circular on the State Council's legislative work plan for the year
listed the Ministry of Foreign Affairs, the Ministry of Public
Security, and the Ministry of Civil Affairs as drafting Temporary
Regulations on the Administration of Refugees. ``Refugees Nearing Dream
of Citizenship,'' People's Daily (Online), 1 June 07.
\26\ ``Refugees Nearing Dream of Citizenship'' People's Daily.
\27\ ``Statement of the Media by United Nations High Commissioner
for Refugees Antonio Guterres, on Conclusion of his Mission to the
People's Republic of China,'' United Nations High Commissioner for
Refugees, 23 March 06.
Notes to Section II--Health
\1\ Beijing Municipality Regulations on Mental Health [Beijing shi
jingshen weisheng tiaoli], issued 8 December 06. According to a 2002
Human Rights Watch report, while an international delegation visited
Beijing in 1993 as part of China's bid for the 2000 Olympics,
individuals with mental illnesses were removed from the streets and
housed in temporary holding centers. Human Rights Watch (Online),
``Dangerous Minds, Political Psychiatry in China Today and its Origins
in the Mao Era,'' August 2002.
\2\ Beijing Municipality Regulations on Mental Health, art. 31.
\3\ G.A. Res. 119, U.N. GAOR, 46th Sess., Supp. No. 49, Annex, at
188-192, U.N. Doc. A/46/49 (1991). The General Assembly approved this
resolution without a vote on December 17, 1991. The resolution is not
binding and it is unclear whether China supported it. Beijing's mental
health regulations, however, include a number of provisions that are
similar to those found in the Principles, suggesting that officials
modeled their provisions in part on the Principles.
\4\ Beijing Municipality Regulations on Mental Health, arts. 27,
32.
\5\ ``Progress in AIDS Battle despite Harassment,'' Reuters,
reprinted in South China Morning Post (Online), 18 July 07.
\6\ Ibid.
\7\ The Center for Strategic and International Studies, ``Averting
a Full-Blown HIV/AIDS Epidemic in China: A Report of the CSIS HIV/AIDS
Delegation in China, 13-17 January 2003,'' February 2003, 2; United
Nations Theme Group of HIV/AIDS in China, ``HIV/AIDS: China's Titanic
Peril-2001 Update of the AIDS Situation and Needs Assessment Report,''
June 2002, 7.
\8\ The Center for Strategic and International Studies,
``Demography of HIV/AIDS in China: A Report of the Task Force on HIV/
AIDS,'' July 2007, 10.
\9\ ``Progress in AIDS Battle despite Harassment,'' Reuters.
\10\ ``China reports leap in new HIV/AIDS cases,'' Reuters
(Online), 9 September 07.
\11\ ``New Estimate in China Finds Fewer AIDS Cases,'' New York
Times (Online), 26 January 06.
\12\ ``Progress in AIDS Battle despite Harassment,'' Reuters;
``UNAIDS Chief Sees Signs of Progress in China,'' Reuters, reprinted in
Yahoo! (Online), 17 July 07.
\13\ Evelyn Iritani, ``China's AIDS Battle Goes Corporate,'' Los
Angeles Times (Online), 3 March 07.
\14\ Ibid.
\15\ Ibid.
\16\ Ben Blanchard, ``China Not Investing Enough To Fight AIDS:
Experts,'' Reuters, 5 April 07. As Thomas Cai, founder of AIDS Care
China, notes: ``Initial progress was made in Beijing because people in
the ministries were working with U.N. people and the international
community. When you get down to the lower level, people still have a
different mind-set.'' Iritani, ``China's AIDS Battle Goes Corporate.''
\17\ ``Hundreds of Police Storm `AIDS Village' in China, Arrest 13
Farmers,'' Agence France-Presse (Online), 3 July 03.
\18\ Chan Siu-sin, ``Four Residents of Henan AIDS Village
Obstructed from Petitioning Beijing,'' South China Morning Post
(Online), 4 July 04.
\19\ Human Rights Watch, Restrictions on AIDS Activists in China,
June 2005, 19; International Federation for Human Rights, Alternative
Report to the Committee on Economic, Social and Cultural Rights: China:
`At a Critical Stage,' Violations of the Right to Health in the Context
of the Fight against AIDS, April 2005.
\20\ ``AIDS Activist Resigns from Civil Society Organization, Cites
Government Pressure,'' CECC China Human Rights and Rule of Law Update,
March 2006, 7-8; ``Progress in AIDS Battle despite Harassment,''
Reuters.
\21\ ``Beijing PSB Officials Hold AIDS Activist Wan Yanhai, Cancel
AIDS Conference,'' CECC China Human Rights and Rule of Law Update,
December 2006, 8-9.
\22\ Jim Yardley, ``Detained AIDS Doctor Allowed To Visit U.S.
Later, China Says,'' New York Times (Online), 17 February 07.
\23\ Ibid.
\24\ Minnie Chan, ``Blood Centre Boss Fired, Six Jailed over
Illegal Sales,'' South China Morning Post (Online), 11 July 07.
\25\ Shan Juan, ``Blood Collections To Be Videotaped,'' China Daily
(Online), 11 July 07.
\26\ Dune Lawrence, ``China's Lack of HIV/AIDS Awareness Undermines
Control Program,'' Bloomberg (Online), 9 April 07. In addition, an
UNAIDS report released in March 2006 found that China was only half way
to meeting its goal under the UN's ``3 by 5'' initiative of providing
30,000 HIV/AIDS carriers access to anti-HIV/AIDS drugs by the end of
2005. World Health Organization and UNAIDS, ``Progress on Global Access
to HIV Antiretroviral Therapy: A Report on 3 by 5 and Beyond,'' 28
March 06, 72; CECC, 2006 Annual Report, 20 September 06, 111.
\27\ ``Number of Tibetans with HIV/AIDS Rising'' [Xizang HIV/AIDS
renshu shangsheng], Radio Free Asia (Online), 17 June 07; Bill
Savadove, ``140,000 Orphaned by AIDS, Says UNICEF,'' South China
Morning Post (Online), 9 July 07.
\28\ Iritani, ``China's AIDS Battle Goes Corporate.''
\29\ Lawrence, ``China's Lack of HIV/AIDS Awareness Undermines
Control Program;'' ``Discrimination against HIV Patients Still Rife,''
Xinhua, reprinted in China.org (Online), 29 November 06.
\30\ ``5-Year-old AIDS Patient Denied Surgery by Guangdong
Hospitals'' [Aizi nantong qiuyi zaoju] Southern Metropolitan Daily
(Online), 25 June 07; Chinese Human Rights Defenders (Online),
``Minquan County AIDS Patients Encounter Unfair Treatment at Police
Station'' [Minquan aizibing ren zaodao paichusuo de bugong daiyu], 5
July 07.
\31\ ``Doctors Not Up to Scratch on Hepatitis,'' China Daily
(Online), 29 September 05; Bonny Ling and Wing Lam, ``Hepatitis B: A
Catalyst for Anti-Discrimination Reforms?,'' 2 China Rights Forum 67,
68 (2007).
\32\ Ministry of Health (Online), ``Ministry of Health Publishes
`2006-2010 Plan on Hepatitis B Prevention and Control''' [``2006-2010
nian quanguo yi xing bingduxing ganyan fangzhi guihua'' fabu], 13
February 06.
\33\ CECC, 2004 Annual Report, 5 October 04, 65.
\34\ ``Law To Protect HB Virus Carriers,'' China Daily (Online), 24
August 04.
\35\ ``Plaintiff Wins Nominally in the First Hepatitis B
Discrimination Lawsuit'' [`Yigan qishi diyian' yuangao mingyi shang
huosheng], Beijing Youth Daily (Online), 3 April 04.
\36\ PRC Law on the Prevention and Control of Infectious Diseases,
enacted 29 February 89, amended 28 August 04; CECC, 2004 Annual Report,
61.
\37\ Zhang Feng, ``HBV Victims Face Improved Job Chances,'' China
Daily (Online), 19 January 05; ``Public Opinion Defeats HBV
Discrimination,'' China Internet Information Center (Online), 23
September 04.
\38\ Vivien Cui, ``Hepatitis B Carriers Forced To Suffer in
Silence,'' South China Morning Post (Online), 5 September 06;
``Xinjiang Hepatitis Students Fight School Ban,'' Radio Free Asia
(Online), 20 November 06.
\39\ ``Doctors Not Up to Scratch on Hepatitis,'' China Daily.
\40\ China Development Brief (Online), ``Hepatitis Foundation
Learns from AIDS Activism,'' 16 February 06.
\41\ Ibid.; ``Xinjiang First Hepatitis B Discrimination Case
Docketed, Incoming Student Sues Xinjiang Agricultural University
[Xinjiang shou li yigan qishi an lian xiuxue xinsheng zhuanggao nongye
daxue],'' City Consumer Morning News (Online), 29 January 06.
\42\ China Development Brief (Online), ``Hepatitis B Stigma
Provokes Outcry in Xinjiang,'' 30 October 06; ``Xinjiang First
Hepatitis B Discrimination Case Docketed, Incoming Student Sues
Xinjiang Agricultural University,'' City Consumer Morning News.
\43\ ``December 16, Friday, Plaintiff in First Hepatitis B
Discrimination Case in Xinjiang Successfully Resumes Student Status''
[12 yue 16 ri, xingqiwu, xinjiang yigan qishi di yi dan dangshiren liyi
shunli bu ban qiquan xueji], Boxun (Online), 18 December 06.
\44\ China Development Brief, ``Hepatitis B Stigma Provokes Outcry
in Xinjiang;'' Mure Dickie, ``Parents in Xinjiang Drop Discrimination
Suit,'' Financial Times (Online), 18 September 07; ``Xinjiang Hepatitis
Students Fight School Ban,'' Radio Free Asia; ``7 Hepatitis B-Positive
Chinese Students Sue,'' Associated Press, reprinted in China Daily
(Online), 23 October 07.
\45\ Ibid.
\46\ China Development Brief, ``Hepatitis B Stigma Provokes Outcry
in Xinjiang;'' ``Xinjiang Hepatitis Students Fight School Ban,'' Radio
Free Asia.
\47\ Ibid.
\48\ Ibid.; Mure Dickie, ``Parents in Xinjiang Drop Discrimination
Suit;'' ``7 Hepatitis B-Positive Chinese Students Sue,'' Associated
Press.
\49\ ``Xinjiang Hepatitis Students Fight School Ban,'' Radio Free
Asia.
\50\ ``Survey Shows Half of Chinese Discriminate against People
with HIV/AIDS'' [Mintiao xianshi duoban zhongguoren paichi
aizibingren], Voice of America (Online), 14 May 07.
\51\ Xin Dingding, ``Law To Protect Hepatitis B Carriers' Rights,''
China Daily (Online), 14 July 07.
\52\ Mure Dickie, ``Nokia China Hit with Discrimination Suit,''
Financial Times (Online), 13 March 07.
\53\ ``Nokia Hepatitis B Discrimination Case Will Open in Court on
August 9, People are Welcome To Attend'' [Nokia yigan qishi an jiang yu
8 yue 9 ri kaiting, huanying canjia pangting, caifang], Boxun (Online),
3 August 07; ``Nokia China Faces Lawsuit over Rejection of Hepatitis-B
Carrier,'' Helsingin Sanomat (Online), 16 August 07.
\54\ Ibid.; ``August 15 Dongguan Nokia Employment Discrimination
Case Outcome and Situation Report from the Plaintiff's Lawyer'' [8 yue
15 ri dongguan nuojiya jiuye qishi anjian shenpan jieguo yiji yu wofang
lushi jiaoliu qingkuang huibao], Gandan Xiangzhao (Online), 15 August
07.
\55\ CECC Staff Search. See also, ``August 15 Dongguan Nokia
Employment Discrimination Case Outcome and Situation Report from the
Plaintiff's Lawyer,'' Gandan Xiangzhao.
\56\ Chinese Human Rights Defenders (Online), ``Government Issues
New Regulations Protecting the Employment Rights of Hepatitis B
Carriers'' [Guanfang chuxin gui yaoqiu weihu yigan biaomian kangyuan
xiedaizhe jiuye quanli], 31 May 07; Bonny Ling and Wing Lam,
``Hepatitis B: A Catalyst for Anti-Discrimination Reforms?,'' 2 China
Rights Forum 67, 72-73 (2007).
\57\ ``New Law Allows Job Seekers To Litigate Against
Discrimination,'' Xinhua (Online), 30 August 07; Xin Dingding, ``Law To
Protect Hepatitis B Carriers' Rights.''
\58\ PRC Employment Promotion Law, enacted 30 August 07, arts. 30,
62; ``A Call for NGO Colleagues to Pay Attention to the Employment
Promotion Law Anti-Discrimination Provision that Leaves out
Discrimination against Carriers of Hepatitis B and HIV'' [Huyu NGO
tongren guanzhu ``jiuye cujin fa'' fei qishi tiaokuan yilou yigan he
aizi qishi wenti], Boxun (Online), 2 March 07.
\59\ ``Legislation for Anti-Discrimination in Employment Urgently
Needed'' [Fan yigan jiuye qishi ying lifa], China Youth Daily (Online),
5 February 07; Bonny Ling and Wing Lam, ``Hepatitis B: A Catalyst for
Anti-Discrimination Reforms?,'' 2 China Rights Forum 67, 71 (2007).
\60\ Xin Dingding, ``Law To Protect Hepatitis B Carriers' Rights.''
\61\ ``SARS Whistle-Blower Barred from US Prize Trip,'' Agence
France-Presse, reprinted in South China Morning Post (Online), 12 July
07.
\62\ Emergency Response Regulations for Major Epidemics of Animal
Diseases [Zhongda dongwu yiqing yingji tiaoli], issued 18 November 05,
Ch. 3, art. 17.
\63\ Human Rights in China (Online), ``State Secrets: China's Legal
Labyrinth,'' June 2007, 180.
\64\ Regulation of the People's Republic of China on the Public
Disclosure of Government Information [Zhonghua renmin gongheguo zhengfu
xinxi gongkai tiaoli], issued 5 April 07, art. 14.
\65\ Cao Haidong and Fu Jianfeng, ``20 Years of Health Care Reform
in China'' [Zhongguo yigai 20 nian], Southern Daily (Online), 5 August
05; Ofra Anson and Shifang Sun, Health Care in Rural China (Ashgate,
Aldershot, Hants, 2005), 15-17.
\66\ Yuanli Liu, ``Development of the Rural Health Insurance System
in China,'' Health Policy and Planning, 19(3), 2004, 160.
\67\ ``Residents of Chinese Cities Live on Average 12 Years Longer
than Those in Rural Areas--What Is the Cause?'' [Zhongguo dachengshi
renjun shouming bi nongcun gao 12 nian--shi he yuanyin?], Xinhua
(Online), 17 November 05.
\68\ ``Facts and Figures: Widening Gap between China's Urban, Rural
Areas,'' People's Daily (Online), 3 March 06.
\69\ ``Residents of Chinese Cities Live on Average 12 Years Longer
than Those in Rural Areas-What Is the Cause?,'' Xinhua.
\70\ ``National Healthcare Needs Gradual Growth,'' China Daily
(Online), 26 March 07.
\71\ ``China will Augment Basic Urban Healthcare Insurance,''
Xinhua, reprinted in China.org (Online), 25 July 07.
\72\ ``Premier Wen Sees How Urban Medicare Works,'' Xinhua,
reprinted in China Daily (Online), 22 July 07.
\73\ David Blumenthal and William Hsiao, ``Privatization and its
Discontents--The Evolving Chinese Health Care System,'' 353 New England
Journal of Medicine 1165, 1169 (2005); CECC, 2006 Annual Report, 109.
\74\ ``Rural Medical System Covers Nearly Half of Farmers,''
Xinhua, reprinted in China.org (Online), 11 September 06; ``National
Healthcare Needs Gradual Growth,'' China Daily.
\75\ ``Rural Medical System Covers Nearly Half of Farmers,''
Xinhua; ``Healthcare Plans in Pipeline,'' China Daily, reprinted in
China.org (Online), 12 March 07.
\76\ Duncan Hewitt, ``China Rural Health Worries,'' BBC News
(Online), 4 July 02.
\77\ ``China Rebuilding Rural Cooperative Medicare System,''
Xinhua, reprinted in Beijing Review (Online), 21 February 07.
\78\ ``Healthcare Plans in Pipeline,'' China Daily; ``Gov't under
Pressure To Make Rural Healthcare System Work,'' Xinhua, reprinted in
China.org (Online), 21 April 07.
\79\ ``Rural Medical System Covers Nearly Half of Farmers,''
Xinhua; ``Rural Cooperative Healthcare Network Planned [sic],'' Xinhua,
reprinted in China.org (Online), 8 June 07.
\80\ ``Half of All Farmers Do Not Seek Care for Illness'' [Zhongguo
nongmin yiban kanbuqi bing], Beijing News (Online), 6 November 04;
``Half of All Children Who Die of Illness in the Countryside Had Not
Received Medical Treatment'' [Wo guo yin bing siwang de nongcun ertong
reng you yibanwei dedao yiliao], People's Daily (Online), 17 August 05;
CECC, 2005 Annual Report, 11 October 05, 72.
\81\ ``Gov't under Pressure To Make Rural Healthcare System Work,''
Xinhua.
\82\ ``China Rebuilding Rural Cooperative Medicare System,''
Xinhua.
\83\ ``Survey: Medical Expenses Account for 11.8% of Family's
Annual Spending,'' Yahoo!, translated on the Web site of Women of
China, 26 December 06.
\84\ ``Doctors Face Growing Risk of Violent Medical Disputes,''
Xinhua, reprinted in China.org (Online), 18 April 07.
\85\ Ibid.
\86\ ``Rural Cooperative Healthcare Network Planned [sic],''
Xinhua.
\87\ ``Rural Medical System Covers Nearly Half of Farmers,''
Xinhua.
Notes to Section II--Environment
\1\ Simon Elegant, ``Barely Breathing,'' Time Magazine (Online), 12
December 06.
\2\ ``China To Build Wind Farms Offshore,'' China Daily (Online),
16 May 05.
\3\ ``Reckless Human Activity Blamed for Frequent Mountain
Torrents,'' Xinhua (Online), 23 June 05; ``World Research Group on
Erosion Founded in China,'' People's Daily (Online), 20 October 04.
\4\ ``Growth Leaves Country High and Dry,'' China Daily (Online),
28 December 04; Ministry of Water Resources (Online), ``Thirsty
Countryside Demands Safe Water,'' 23 March 05.
\5\ State Council Information Office, White Paper on Environmental
Protection in China (1996-2005), People's Daily (Online), 5 June 06.
\6\ ``Analysis: Stability Concerns Drive China's Environmental
Initiatives,'' Open Source Center, 28 June 06; Ching-Ching Ni, ``China
Toughens Stance on Environmental Protection,'' Los Angeles Times
(Online), 22 February 06.
\7\ Elizabeth C. Economy, The River Runs Black: The Environmental
Challenge to China's Future (Ithaca, New York: Cornell University
Press, 2004), 24.
\8\ Ibid., 25; `` `Mass Incidents' on Rise as Environment
Deteriorates,'' Xinhua (Online), 5 July 07.
\9\ State Council Information Office, White Paper on Environmental
Protection in China (1996-2005); Andrew Baston, ``China Takes on
Pollution,'' Wall Street Journal, 6 June 06, A8.
\10\ ``SEPA and the Ministry of Health Will Draw Up Standards of
Environmental Damage Caused Health,'' Environment Public Information
Network Center, reprinted in All-China Environment Federation (Online),
7 October 06.
\11\ Ching-Ching Ni, ``China Toughens Stance on Environmental
Protection;'' Deng Weihua, Lin Wei, and Li Zebing, ``A Strange Circle
of Pollution-Control-the Worse the Pollution, the Wealthier the
Environmental Protection Bureaus'' [Zhiwu guaiquan: wuran yue zhong
huanbao bumen yue fu], Legal Daily (Online), 12 July 05; Elizabeth C.
Economy, The River Runs Black,'' 20-21.
\12\ `` `Mass Incidents' on Rise as Environment Deteriorates,''
Xinhua.
\13\ Jonathan Watts, ``China Blames Growing Social Unrest on Anger
over Pollution,'' The Guardian (Online), 6 July 07; `` `Mass Incidents'
on Rise as Environment Deteriorates,'' Xinhua.
\14\ CECC, 2006 Annual Report, 20 September 06, 103.
\15\ Wang Yongchen, ``Nu River News,'' Three Gorges Probe (Online),
6 March 07.
\16\ Wang Yongchen, ``Nu River News;'' Jianqiang Liu, ``Fog on the
Nu River,'' China Dialogue (Online), 28 February 07. In February 2004,
the government responded to citizen environmental concerns and agreed
to suspend all 13 proposed hydroelectric dam projects on the Nujiang
(Nu River) in Yunnan province, pending further review. In 2005, Chinese
officials reversed this decision after a closed internal review of the
Environmental Impact Assessment (EIA) report, said that four of the
proposed dams would be built, and banned further domestic news media
coverage of the topic. In September 2005, environmental activists
posted an open letter to the State Council on the Internet, pointing
out violations of the EIA law and demanding that officials organize a
public hearing on the dam project. Yunnan provincial authorities
subsequently released the government's order approving the EIA report,
after refusing to do so for two years. In April 2006, Chinese activists
reported signs of survey work near the proposed dams being covered up
before a visit by a UNESCO-ICUN inspection team to investigate the
potential impacts of building a dam in the Three Parallel Rivers
National Park, which is a UNESCO world heritage site. Wang Yongchen,
``Nu River News;'' CECC, 2006 Annual Report, 107.
\17\ ``Call for Public Disclosure of Nujiang Hydropower
Development's EIA Report in Accordance with the Law,'' Three Gorges
Probe News Service (Online), 6 September 05; Jim Yardley, ``Seeking a
Public Voice on China's `Angry River,' '' New York Times (Online), 26
December 05.
\18\ ``New Rules to Curb `Rampant' Violations of Pollution Laws,''
Xinhua (Online), 12 July 07.
\19\ Experts have noted the significance of high impact litigation,
in which even if the plaintiffs loses the case, it still may spur
public officials to act, such as by issuing regulations. CECC Staff
Interview; Xu Kezhu and Alex Wang, ``Recent Developments at the Center
for Legal Assistance to Pollution Victims (CLAPV),'' Woodrow Wilson
Center for International Scholars, 8 China Environment Series 103, 104
(2006).
\20\ ``Containing Social Unrest Key to Chinese Officials' Promotion
Prospects,'' China Elections and Governance Web site (Online), 9 July
07.
\21\ Ibid.
\22\ ``China's Environmental Degradation Creating Social Time-
Bomb,'' China Corporate Social Responsibility (Online), 1 August 07;
Guobin Yan, ``Of Revolution and Reform: Two Faces of Environmental
Activism in China,'' presented at the Association for Asian Studies
Conference, April 2006.
\23\ CECC Staff Interview.
\24\ CECC, 2005 Annual Report, 11 October 05, 75.
\25\ Ibid.
\26\ The measures allow a limited role for the public in the EIA
process through attendance at symposiums or public hearings, answering
questionnaires, and consulting experts. In July 2006, a SEPA official
announced that public hearings may be held on important, complex, or
difficult environmental matters. ``Public Can Help Environment,'' China
Daily (Online), 27 February 06; ``SEPA Chief: Emergency Environmental
Incidents Can Be Directly Reported to the State Bureau For Letters and
Calls'' [Huanbao zongju: tufa zhongda huanjing shixiang ke zhi bao
guojia xinfang ju], People's Daily (Online), 6 July 06; ``SEPA Issues
New Measures on Environmental Letters and Petitions'' [Huanbao zongju
fabu shishi xin de huanjing xinfang banfa], Legal Daily (Online), 6
July 06.
\27\ Among the blocked projects, 31 were later granted approval
after they carried out the proper consultation with the public. ``SEPA
Blocks 12 Industrial Projects for Lack of Public Support,'' Xinhua
(Online), 8 May 07; Ling Li, ``New Environmental Transparency Rule
Opens Opportunity for Public Participation,'' China Watch (Online), 3
May 07.
\28\ These regulations will become effective on May 1, 2008.
Workshop on Information Disclosures and Environment in China, World
Bank, 5 June 07; Ling Li, ``New Environmental Transparency Rule Opens
Opportunity for Public Participation;'' ``Govt's, Firms Ordered To
Release Pollution Figures,'' Xinhua (Online), 26 April 07.
\29\ ``Three Gorges Resettlement Activist Paralyzed After
Assault,'' CECC China Human Rights and Rule of Law Update, July 2006,
10-11.
\30\ ``Officials Conclude Investigation, Increase Surveillance Over
Activist Fu Xiancai,'' CECC China Human Rights and Rule of Law Update,
September 2006, 12.
\31\ Human Rights in China (Online), ``News Update: Hangzhou
Environmentalist Tan Kai's Trial Granted Continuance,'' 22 June 06;
``Environmentalist Tan Kai Sentenced to 1.5-Year Term'' [Huanbao renshi
tan kai bei pan yi nian ban xingqi], Radio Free Asia (Online), 11
August 06; Chinese Human Rights Defenders (Online), ``Zhejiang
Environmental Activist Tan Kai Released from Prison'' [Zhejiang huanbao
renshi tan kai chuyu], 1 May 07.
\32\ Human Rights in China presented Sun Xiaodi's acceptance
message for the prestigious Nuclear-Free Future Award in Window Rock,
Arizona on December 1, 2006. His wife, who stayed in Gansu province
after Sun departed for Beijing, has continued to receive threats and
harassment from unknown individuals believed to be hired by local
officials. Human Rights in China (Online), ``Sun Xiaodi Harassed, Faces
Financial Hardship,'' 27 March 07; Human Rights in China (Online),
``Environmental Activist Sun Xiaodi Faces Stepped-up Harassment after
International Award,'' 2 January 07.
\33\ ``State Security Bureau in Beijing Orders Sun Xiaodi To Leave
Beijing'' [Beijing guoan leling sun xiaodi li jing], Radio Free Asia
(Online), 18 July 07.
\34\ Minnie Chan, ``Partner Profile: Defenders of Tai Hu,'' South
China Morning Post, reprinted in Pacific Environment (Online), 29 May
06.
\35\ Tracy Quek, ``The Man Who Wants To Save a Lake; Beijing's
Efforts To Protect the Environment Thwarted by Local Officials'
Subterfuge in their Drive for Growth,'' Straits Times (Online), 21
January 2007.
\36\ Chan, ``Partner Profile: Defenders of Tai Hu.''
\37\ Ibid.; Quek, ``The Man Who Wants To Save a Lake.''
\38\ Chan, ``Partner Profile: Defenders of Tai Hu.''
\39\ Ibid.
\40\ Ibid.
\41\ `` `Hero of Taihu' Wu Lihong Detained'' [``Taihu weishi'' wu
lihong bei daibu], Deutsche Welle (Online), 23 April 07; Andreas
Landwehr, ``Attempt To Save Polluted Chinese Lake Leads to Arrest,''
Deutsche Presse-Agentur (Online), 17 April 07; ``China Detains Green
Activist Once Hailed Hero,'' Reuters (Online), 23 April 07; Shai Oster,
``Police Hold Chinese Foe of Polluters,'' Wall Street Journal (Online),
23 April 07.
\42\ ``Jiangsu Environmental Activist Wu Lihong Beat Up in Prison''
[Jiangsu huanbao renshi wu lihong zai jianyu zhong zao duda], Radio
Free Asia (Online), 1 June 07; ``Wife of Chinese Environmental Activist
Wu Lihong Says Husband Tortured,'' Agence France-Presse, 1 June 07
(Open Source Center, 04 June 07); Wang Xiangwei, ``Editorial: Release
the Man Who First Raised the Alarm About Tai Lake's Pollution,'' South
China Morning Post (Online), 4 June 07; ``Extortion Trial for Chinese
Environmentalist Postponed, Wife and Attorney Say,'' Associated Press,
reprinted in China Post (Online), 6 June 07.
\43\ ``Premier Demands Thorough Investigation of Taihu Lake
Crisis,'' Xinhua (Online), 12 June 07; `` `Mass Incidents' on Rise as
Environment Deteriorates,'' Xinhua; Chris Buckley, ``China Algae
Outbreak Sparks Water Panic,'' Reuters (Online), 31 May 07; Christopher
Bodeen, ``China's Premier Orders Lake Algae Probe,'' Associated Press,
reprinted in the Washington Post (Online), 12 June 07.
\44\ Bodeen, ``China's Premier Orders Lake Algae Probe.''
\45\ Ibid.
\46\ `` `Eco-warrior' Wu Lihong Charged for Blackmail,'' Xinhua,
reprinted in People's Daily (Online), 6 June 07.
\47\ ``Extortion Trial for Chinese Environmentalist Postponed, Wife
and Attorney Say,'' Associated Press.
\48\ Benjamin Kang Lim, ``China Jails Environment Activist, Cuts
Dissident's Term,'' Reuters (Online), 18 August 07.
\49\ Tracy Quek, ``China Jails `Green' Hero,'' Strait Times, 12
August 07.
\50\ Lim, ``China Jails Environment Activist.''
\51\ For example, in 2002, President Hu Jintao noted that ``the
masses should play a role in supervising party officials.'' Simon
Montlake, ``Whistle-blower in China Faces Prison,'' Christian Science
Monitor (Online), 14 August 07.
\52\ For example, Zhou Jian, Vice Minister of SEPA, mentioned that
there is differing information relating to environmental health data.
Yet, he reiterated the Chinese government's promise to protect people's
health from pollution. Sun Xiaohua, ``World Bank Environment Report
`Not Very Reliable,' '' China Elections and Governance Web site
(Online), 18 July 07.
\53\ Wang Jiaquan, ``China's Economic Engine Forced To Face
Environmental Deficit,'' China Watch (Online), 26 July 07.
\54\ China Council for International Cooperation on Environment and
Development (CCICED) Task Force on Environmental Governance,
``Environmental Governance in China,'' presented at the 5th Annual
General Meeting of the CCICED, 10-12 November 06, 11-12.
\55\ Ling Li, ``China Postpones Release of Report on `Green' GDP
Accounting,'' China Watch (Online), 31 July 07; ``China's Environmental
Degradation Creating Social Time-Bomb,'' China Corporate Social
Responsibility.
\56\ Ling Li, ``China Postpones Release of Report on `Green' GDP
Accounting.''
\57\ Ibid.
\58\ Sun Xiaohua, ``World Bank Environment Report `Not Very
Reliable.' ''
\59\ ``Beijing Denies Bid To Cover Up World Bank Pollution Data,''
South China Morning Post (Online), 9 July 07.
\60\ Monica Liau, ``Chinese Government Censors World Bank Pollution
Report,'' China Watch (Online), 11 July 07; Richard McGregorin,
``Beijing Censored Pollution Report,'' Financial Times (Online), 3 July
07; Mitchell Landsberg, ``China Cancels Environment Report,'' Los
Angeles Times (Online), 24 July 07.
\61\ Sun Xiaohua, ``World Bank Environment Report `Not Very
Reliable.' ''
\62\ State Council Information Office (Online), ``The State Council
Has Handled the Jilin Explosion Incident and Songhua Water Pollution
Incident'' [Guowuyuan dui jihua baozha shigu ji songhua jiang shuiwuran
shijian zuo chuli], 24 November 06.
\63\ ``Branch Office of Jilin Petrochemical Company Fined One
Million Yuan for Songhua River Incident'' [Jilin shihua fengongsi yin
songhua jiang shuiwuran bei fakuan 100 wan], Xinhua (Online), 24
January 07.
\64\ ``Can SEPA's Maximum Fine Unsettle Enterprises' Low Cost of
Violating the Law?'' [Huanbao zuida fadan nengfou zhenshe qiye
dichengben weifa], China Youth Daily (Online), 25 January 07.
\65\ ``Draft of Revised Water Pollution Prevention Law Already
Finished'' [Shuiwuran fangzhi fa xiugai caoan yi ni chu], Legal Daily
(Online), 30 January 07; ``China Solicits Public Opinion on Draft Law
on Water Pollution,'' Xinhua (Online), 5 September 07.
Notes to Section III--Civil Society
\1\ See, e.g., ``Chinese NGOs Wish To Be Helpful to the
Government,'' Xinhua, reprinted in People's Daily, 7 July 05.
\2\ Regulation on the Management of the Registration of Social
Organizations, [Shehui tuanti dengji guanli tiaoli], issued 25 October
98. art. 3, 6.
\3\ See, e.g. International Covenant on Civil and Political Rights
(ICCPR), adopted by General Assembly resolution 2200A (XXI) of 16
December 66, entry into force 23 March 76, art. 22; China is a
signatory to the ICCPR. The Chinese government has committed itself to
ratifying, and thus bringing its laws into conformity with, the ICCPR
and reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly. As a signatory to the ICCPR, China is required under Article
18 of the Vienna Convention on the Law of Treaties, to which it is a
party, ``to refrain from acts which would defeat the object and purpose
of a treaty'' it has signed. Vienna Convention on the Law of Treaties,
enacted 23 May 69, entry into force 27 January 80, art. 18.
\4\ See, e.g., ``Minister of Civil Affairs Li Xueju: Foreign NGOs
Can Legally Register for First Time'' [Minzhengbu buzhang Li Xueju:
shewai minjian zuzhi shouci nihe fa dengji], People's Daily (Online),
13 March 07. Guo Xiaojun, ``NGOs May Not Need an Oversight Organization
in Order To Register'' [NGO zhuce you wang wu xu zhuguan danwei],
Beijing News (Online), 18 October 04.
\5\ ``Minister of Civil Affairs Li Xueju: Foreign NGOs Can Legally
Register for First Time,'' People's Daily. Current regulations provide
no guidelines for most foreign NGOs to register. Bereft of means to
legally register as civil society organizations, some foreign NGOs
decide not to register, others register as for-profit businesses, and
others partner with a government-organized NGO. See, e.g., ``NGOs
Defined in China,'' China Corporate Social Responsibility (Online), 11
October 06. The government announced in January it had started work to
revise the Temporary Regulations on the Registration and Management of
Non-Governmental, Non-Commercial Enterprises, and that it had drafted
implementing measures for the 2004 Regulation on the Management of
Foundations. ``Director Sun Weilin's Speech at National Video
Conference on Management of Civil Society Organizations'' [Sun Weilin
juzhang zai quanguo minjian zuzhi guanli gongzuo shipin hui shang de
jianghua], Ministry of Civil Affairs (Online), 31 January 07.
\6\ See, e.g., Guo, ``NGOs May Not Need an Oversight Organization
in Order To Register;'' ``CPPCC Member Wang Ming Demands Reform of Dual
Regulatory System for Social Organizations,'' China Law Digest
(Online), 13 March 07; ``Minister of Civil Affairs Li Xueju: Foreign
NGOs Can Legally Register for First Time,'' People's Daily.
\7\ ``Grassroots NGOs Struggle for Legitimacy,'' State
Environmental Protection Administration (Online), 22 June 07 (referring
to the retention of the dual oversight system stemming from
requirements to obtain a sponsorship organization and register with a
civil affairs bureau).
\8\ ``Minister of Civil Affairs Li Xueju: Foreign NGOs Can Legally
Register for First Time,'' People's Daily.
\9\ Regulations on the Management of Foundations [Jijinhui guanli
tiaoli], issued 8 March 04, art. 13
\10\ The figure includes registered social organizations [shehui
tuanti], nongovernmental noncommercial enterprises [minban feiqiye
danwei], and foundations [jijinhui], three categories of civil society
organizations delineated in MOCA's statistical reports. ``2006
Statistical Report on Civil Affairs Sector Development'' [2006 nian
minzheng shiye fazhan tongji baogao], Ministry of Civil Affairs
(Online), 23 May 07.
\11\ Estimates, which include quasi-governmental organizations, are
cited in Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2006, China
(includes Tibet, Hong Kong, and Macau),'' 6 March 07. One Chinese
scholar estimated the total number at 3 million. Zhao Ling and Dong
Shuhua, ``New Regulations on Social Organizations To Be Issued This
Year: Civil Society Organizations To Receive Appropriate
Encouragement'' [Xin shetuan tiaoli nian nei chutai: minjian zuzhi
jiang huo shidu guli], Southern Weekend (Online), 19 May 05. Chinese
news sources continued to cite this figure in 2007. See, e.g.,
``Minister of Civil Affairs Li Xueju: Foreign NGOs Can Legally Register
for First Time,'' People's Daily.
\12\ One survey of 22 Chinese NGOs revealed 5 unregistered ones
which ``conducted their activities openly without experiencing any
explicit control exerted by any government agencies.'' The study noted
that ``because civil affairs offices had no resources to register all
prospective NGOs and the Chinese government had a policy to encourage
voluntary activities as a way to advance the well-being of society,
civil affairs offices allowed the existence of unregistered NGOs as
long as these NGOs had not committed any financial misdeeds or posed
any political threats.'' NGOs in China: Encouraging Action and
Addressing Public Grievances, Staff Roundtable of the Congressional-
Executive Commission on China, 7 February 05, Written Statement
submitted by Jiang Ru, Ph.D. in Environmental Management and Planning,
Stanford University. See also ``Students With Hepatitis B File Lawsuit
After School Officials Bar Enrollment,'' CECC China Human Rights and
Rule of Law Update, November 2006, 11-12; Georgina Li, ``Xinjiang AIDs
NGO Calls for End to `State of Terror' After Closure,'' South China
Morning Post (Online), 25 October 06.
\13\ ``Li Qiang: Call To Pay Attention to Harassment of 12
Grassroots Organizations in Shenzhen'' [Li Qiang: Huyu guanzhu Shenzhen
shi'er jia caogen tuanti shou dapo shijian], Boxun (Online), 15
November 06. See also ``ACFTU Measures Promote Migrant Benefits, Also
Aim To Curb Independent Groups,'' CECC China Human Rights and Rule of
Law Update, December 2006, 11-12.
\14\ ``Students With Hepatitis B File Lawsuit After School
Officials Bar Enrollment,'' CECC China Human Rights and Rule of Law
Update, November 2006, 11-12. See also ``Xinjiang AIDS Organization
Snow Lotus is Shut Down'' [Xinjiang aizibing minjian zuzhi xuelianhua
bei qudi],'' Radio Free Asia (Online), 19 October 06. The Xinjiang
government formally shut down the group for failing to register, but
AIDS activist Wan Yanhai noted that many of China's HIV/AIDS
organizations operate without official registration. Li, ``Xinjiang
AIDs NGO Calls for End to `State of Terror' After Closure.''
\15\ Public officials in China consider the CDP to be an illegal
organization and have used subversion charges to impose lengthy prison
sentences on numerous CDP activists since the group's founding in 1998
to promote multi-party politics and a peaceful transformation of
Chinese politics. Human Rights Watch (Online), ``Nipped in the Bud: The
Suppression of the China Democracy Party,'' September 00. See also
``Overseas Service Center of Chinese Democracy Party Calls for
Attention to Case of China Democracy Party's Chen Shuqing and Li Hong
(Zhang Jianghong)'' [Zhongguo minzhu dang haiwai fuwu zhongxin huyu
guanzhu Chen Shuqing, Li Hong (Zhang Jianhong) zhongguo minzhu dang yi
an], Radio Free Asia (Online), 19 September 06.
\16\ ``Well-Known Online Article Writer Zhang Jianhong Sentenced
for Inciting Subversion of State Power'' [Wangshang zhuanwen da Zhang
Jianhong shandong dianfu guojia zhengquan an xuanpan], Xinhua,
reprinted in Phoenix Television (Online), 20 March 07. See also the
CECC Political Prisoner Database for more information.
\17\ ``China Jails Internet Writer for Subversion, Disbars
Lawyer,'' Reuters (Online), 16 August 07. See also the CECC Political
Prisoner Database for more information.
\18\ ``Pro-Democracy Activist Detained for `Inciting Subversion'
Government Must End Criminalization of Free Speech,'' Chinese Human
Rights Defenders (Online), 27 August 07. See also the CECC Political
Prisoner Database for more information.
\19\ ``Zhejiang China Democracy Party Member Chi Jianwei Sentenced
to 3 Years in Prison'' [Zhejiang sheng zhongguo minzhu dang chengyuan
chi jianwei bei pan xing 3 nian tuxing], Radio Free Asia (Online), 27
March 07. See also the CECC Political Prisoner Database for more
information.
\20\ In 2007 a Zhejiang court sentenced writer and painter Yan
Zhengxue to three years in prison for inciting subversion for
publishing essays deemed critical of the government. Procuratorate
officials had alleged Yan was a secret member of the CDP, but the court
did not include this as a basis for its sentence. Independent Chinese
Pen Center, ``ICPC Statement Regarding Protest of Member Yan Zhengxue's
Sentence'' [Duli zhongwen bihui guanyu huiyuan Yan Zhengxue bei panxin
de kangyi shengming],'' 19 April 07. See also the CECC Political
Prisoner Database for more information.
\21\ See the CECC Political Prisoner Database for more information.
See also ``Authorities Arrest and Imprison Writers for Online Essays
Criticizing Government,'' CECC China Human Rights and Rule of Law
Update, November 2006, 4-5.
\22\ U.S. Department of State, Country Reports on Human Rights
Practices--2006, China. Chinese and western sources have defined the
term ``nongovernmental organization'' in different ways and have varied
in their views of the function of such organizations. In the Chinese
context, government involvement can shape the operation of such groups,
some of which include so-called government-operated NGOs. As noted in
the State Department report, registration requirements ``prevented the
formation of truly autonomous political, human rights, religious,
spiritual, labor, and other organizations that might challenge
government authority.''
\23\ Chen Xiangyang, ``The Current State and Challenges of
Nongovernmental Organizations in China,'' China Economic Times, 26 May
05 (Open Source Center 27 May 05). In the spring and summer 2005, after
uprisings in former Soviet republics, senior Chinese international
relations experts fanned out to the United States and quizzed U.S.
specialists on China whether there was a deliberate U.S.-backed plan,
with U.S. NGOs at the forefront, to shift from a ``War on Terror'' to
``War for Democracy,'' following on a theme sounded in President George
Bush's second inaugural address. Some Chinese sources confided in
Western specialists that they heard Russian President Vladimir Putin
had urged Hu Jintao to exercise caution toward the role of U.S.-
supported NGOs in Chinese society, lest they promote a revolution from
below via civil society. CECC Staff Interviews. For a more recent
article expressing general concerns about Western infiltration, see
``Be on Guard Against the Western Countries in Their Attempt To Stage
`Peaceful Evolution' in China,'' Beijing Marxism Research, 5 October 06
(Open Source Center, 4 January 07). At the same time, an August 2006
article in Study Times, a Central Party School newspaper, criticized
the polarization of views regarding foreign NGOs and called for a more
objective assessment recognizing both the positive contributions of
such organizations as well as their shortcomings. Zhao Liqing, ``How To
Assess Foreign NGOs in China'' [Ruhe kandai zai Zhongguo de waiguo
feizhengfu zuzhi], Study Times, reprinted on the China Elections and
Governance Web site, 23 August 06.
\24\ See, e.g., ``China Tightening Control Over NGOs'' [Zhongguo
jiajin kongzhi feizhengfu zuzhi], Voice of America, reprinted on Boxun,
31 August 06; ``Investigation Sends Chill Through Activist Group,''
Associated Press, printed in the South China Morning Post, 31 August
06.
\25\ CECC Staff Interviews. In addition to receiving earlier
reports of Chinese partners withdrawing from cooperative projects, the
Commission confirmed in 2007 that the practice has continued.
\26\ Nick Young, ``Message from the Editor,'' China Development
Brief (Online), 12 July 07.
\27\ ``Ministry Mulls Help for Farmers' Groups,'' China Daily
(Online), 07 July 07. Law on Professional Farmers' Cooperatives
[Zhonghua renmin gongheguo nongmin zhuanye hezuoshe fa], issued 31
October 06, art. 13. Details on registration requirements are
articulated in the Regulation on the Management of the Registration of
Professional Farmers' Cooperatives [Nongmin zhuanye hezuoshe dengji
guanli tiaoli], issued 28 May 07. For more information on the law and
regulation, see Kevin Schwartz, ``The Farmers' Professional Cooperative
Law (P.R.C.) in Economic, Political, and Legal Context.'' 5
International Journal of Civil Society Law, July 2007, 39.
\28\ Law on Professional Farmers' Cooperatives, art. 13.
\29\ World Bank, East Asia and Pacific Region, ``China--Farmers
Professional Associations: Review and Policy Recommendations,'' October
2006, 2-3. Critics of the law have noted that it fails to apply to all
types of cooperatives and does not promote the formation of rural
finance cooperatives. ``Ministry Mulls Help for Farmers' Groups,''
China Daily.
\30\ ``Better Regulation of Charities on [the] Way: Official,''
China Daily, reprinted in People's Daily (Online), 25 May 07. See also
``Tax Policy on Charity Widened,'' China Daily (Online), 20 January 07.
Although Chinese authorities have expressed support for charitable
activities, critics argue that the government has hindered the growth
of grassroots charitable organizations. ``Chinese Government Does Not
Encourage Development of Grassroots Philanthropic Organizations''
[Zhongguo zhengfu bu guli caogen cishan jigou de fazhan], Radio Free
Asia (Online), 31 January 07. In 2006, the Communist Youth League
Central Committee began a campaign to recruit and train ``registered''
volunteers. ``China Developing Law To Recognize and Boost
Volunteerism,'' Xinhua, reprinted on People's Daily (Online), 06
December 06. The status of charitable organizations has taken on
increasing importance as part of a broader effort by the Chinese
government to encourage volunteer work among the populace. In March
2005, Premier Wen Jiabao presented the first government report to
include specific support for charitable activities. ``Policy Incentives
Urged for Charitable Activities,'' China Daily (Online), 22 November 05
(Open Source Center, 22 November 05).
\31\ ``Donations to Charitable Organizations All To Be Exempt from
Taxation'' [Juanzeng gongyi shetuan junke mianshui], Beijing News
(Online), 19 January 07; ``Tax Policy on Charity Widened,'' China
Daily. For text of the policy, see ``Circular of the Ministry of
Finance and the State Administration of Taxation on the Policies and
Relevant Management Issues Concerning the Pre-tax Deduction of Public
Welfare Relief Donations'' [Guanyu gongyi jiujixing juanzeng shui qian
kouchu zhengce ji xiangguan guanli wenti de tongzhi], issued 19 January
07. Previous policy only allowed tax deductions for donations made to a
small group of specified organizations; the new policy extends this to
all registered nonprofit social welfare organizations and foundations.
A new Enterprise Income Tax law adopted during the 10th NPC session in
March 2007 raises the limitation of permitted deductions for corporate
donations from 3 to 12 percent of annual profit. Enterprise Income Tax
Law of the People's Republic of China, issued 16 March 07, art. 9. This
provision replaces the Trial Regulations on Enterprise Income Tax
[Zhonghua renmin gongheguo qiye suodeshui zanxing tiaoli], issued 13
December 93, art. 6(4).
\32\ In the first phase, six NGOs (including the U.S.-headquartered
Heifer Project International) were selected to facilitate projects in
villages in Jiangxi province. Wang Zhenghua, ``NGOs Win Bid for Poverty
Relief,'' China Daily (Online), 22 February 06. Chan Siu-Sin, ``Civil
Groups Given State Funding for Relief Operations,'' South China Morning
Post (Online), 20 March 06. The government traditionally has acted
independently of NGOs in implementing poverty alleviation initiatives,
which has led to inefficiency due to bureaucratic requirements.
Corruption among local government officials has also proved problematic
in the distribution of relief funds. ``Beijing Review: Government
Changes Needed To Clarify NGOs' Role in China,'' Beijing Review, 31
March 06 (Open Source Center, 31 March 06).
\33\ Chang Tianle, ``Shanghai Dances with NGOs,'' China Development
Brief Newsletter, November 06.
Notes to Section III--Institutions of Democratic Governance
\1\ On Tiananmen's impact on leadership politics and political
reform, see Joseph Fewsmith, China Since Tiananmen: The Politics of
Transition (Cambridge University Press, 2001), 1-10; Joseph
Fewsmith,``Hu Jintao's Outbox,'' The Atlantic Council, Conference Paper
for China and The World Economy Workshop, December 2005; Murray Scot
Tanner, ``Can China Contain Unrest? Six Questions Seeking One Answer,''
Brookings Institution Northeast Asia Commentary (Online), March 2007.
\2\ CECC, 2006 Annual Report, 20 September 06, 125.
\3\ David Schlesinger and Brian Rhoads, ``Wen Says Time Not Ripe
for Direct Polls,'' Reuters (Online), 5 September 06; See also
``Chinese Premier Rules Out Democratic Reform in Near Future,'' Voice
of America (Online), 27 February 07.
\4\ According to a 2001 article by elections expert Jamie Horsley
of the China Law Center at Yale Law School, as of that year, voters in
some parts of Fujian province had already participated in their seventh
round of voting since 1988. Jamie Horsley, ``Village Elections:
Training Ground for Democratization,'' China Business Review, March-
April 01, reprinted in China Elections and Governance (Online), 4
November 06.
\5\ Guan Xiaofeng, ``Progress and Problems Mark Village
Elections,'' China Daily (Online), 10 July 07 (Open Source Center, 11
July 07).
\6\ ``Guangdong Villagers Surround Village Committee, Protest
Election Rigging and Manipulation,'' Radio Free Asia (in Chinese), 26
September 07; Law enforcement officials in Zhejiang province, for
example, reported that in some rural areas, popular anger over vote-
buying, election rigging, and other efforts to subvert the electoral
system account for more than one-tenth of all cases of rural unrest.
Zhang Ruoxian, Wang Weiwen, Liu Zhiming, ``Causes and Policy Responses
to the Problems of Crimes Committed by Rural Residents in the Course of
Urbanization'' [Chengshihua jincheng zhong shidi nongmin weifa fanzui
wenti de chengyin yu duice], Zhejiang Court Network (Online), 20 March
06.
\7\ Guan, ``Progress and Problems Mark Village Elections.''
\8\ ``Rural Elections Undermined by Bribery, Manipulation,'' China
Daily, reprinted in China Elections and Governance (Online), 21 August
06.
\9\ ``Bribery Reported in Grass-Roots Elections in Villages,''
Xinhua, 9 October 06; ``Inner Mongolia Village Elections See Rampant
Bribery,'' China Elections and Governance (Online), 10 October 06.
\10\ ``China Punishes 192 Officials for Electoral Fraud,'' China
Daily, reprinted in China Elections and Governance (Online), 2 February
07; See also ``Central Committee Investigates Vote Buying Affair by Li
Tangtang,'' 21st Century Economic Herald (21 Shiji jingji daobao), 6
February 07.
\11\ Lianjiang Li, ``Driven to Protest: China's Rural Unrest,''
Current History, 105 (689) September 06, 253.
\12\ CECC, 2006 Annual Report, 20 September 06, 127-131. For
evidence that this trend has continued and deepened in 2006-2007, see
the endorsement of ``concurrent leadership'' in ``Hunan Issues
`Opinions' on Strengthening Village Cadres Contingent,'' Hunan Daily
(Online), 25 May 07. Liaoning Daily, 10 January 07 in ``Report on
Village Democracy in China,'' (Open Source Center, 24 Jan 07); Hebei
Daily, 17 April 07 in ``Report on Village Democracy in China,'' (Open
Source Center, 13 April - May 07); Sun Dongwen (Dantu District CCP
Organization Department Deputy Director), ``Speech Before the Work
Meeting of the Entire District on Village Party Committee Elections,''
[Zai quanqu cundang zuzhi huanjie gongzuo huiyi shang de jianghua], 9
August 07, Dantu Communist Party Committee Party Building Web site.
\13\ CECC Staff Interviews.
\14\ Election and nomination rules for residents committee
elections are reportedly far more flexible than those for village
committees, which are in principle governed by more detailed laws. In
some cities, the process is very restricted and indirect, with only a
few more candidates than committee seats. Local election committees
control the identity of candidates, with voters choosing a limited
number of representatives for their housing blocks who can, in turn,
vote for the actual committee candidates. More fundamentally, rural
village committees actually influence provision of important services
in their area, while an urban community committee ``doesn't control any
benefits that people value, so they do not value the community
committee.'' For a brief history of these elections and foreign NGO
election monitoring activities, see Elizabeth Dugan, ``Urban Elections
in China,'' China Elections and Governance (Online), 10 January 03.
\15\ ``Shenzhen To Increase Direct Resident Committee Election
Proportion to 70 Percent,'' Southern Daily, 15 May 07 (Open Source
Center, 17 July 07).
\16\ For a report on such a vote in Beijing, see Sun Yuqing, ``In a
Rare Vote, Local Residents Support Compensation Plan for Demolition of
their Homes,'' China Daily (Online), 11 June 07. However, some analysts
have observed that residents committees work more predominantly in the
interests of developers, serving as the developer's agent during the
planning and relocation process. See Pamela N. Phan, Enriching the Land
or the Political Elite? Lessons from China on Democratization of the
Urban Renewal Process, 14 Pac. Rim. L. & Pol'y J. 607, 621 (2005);
Daniel Abramson, Marketization and Institutions in Chinese Inner-City
Neighborhood Redevelopment: A Commentary on Beijing's Old and
Dilapidated Housing Renewal by Lu Junhua, 14 Cities 71, 73 (1997).
\17\ ``China's County, Township, Congress Elections Underway,''
Xinhua (Online), 24 October 06.
\18\ An Hua, ``Voter Appraisals of Representatives to the Beijing
People's Congress Vary'' [Beijing xuanju renmin daibiao zhong xuanmin
baobian buyi], Voice of America (Online), 8 November 06.
\19\ Ibid.
\20\ For a general report on various instances of harassment, see
``Local Authorities Interfere With Rights To Vote and Stand For
Election,'' CECC China Human Rights and Rule of Law Update, December
2006, 14-15.
\21\ Ding Xiao, ``Yao Lifa Obstructed in his Independent Candidacy,
Summoned for Interrogation on the Eve of Election Day'' [Yao Lifa duli
jingxuan shouzu; toupiaori qianxi zao chuanxun], Voice of America
(Online), 7 November 06.
\22\ An Hua, ``Chinese Rights Defender Campaigning To Be People's
Congress Representative Is Detained'' [Zhongguo jingxuan renda daibiao
weiquan renshi bei juliu], Voice of America (Online), 7 November 06.
\23\ Liu Qing, ``Far-Reaching Significance of Independent
Candidacy'' [Duli canxuan yiyi shenyuan], Human Rights in China
(Online), September 06.
\24\ For a detailed list of recent experiments , see Chen Jiaxi,
``Rural Village Basic-Level Party Organization Elections: Progress and
Problems,'' [Nongcun jiceng dang zuzhi xuanju gaige: jinzhan yu wenti],
Beijing Party Building [Beijing Dangjian] (Online), 17 July 07.
\25\ Chen Jiaxi, ``Rural Village Basic-Level Party Organization
Elections.''
\26\ For a detailed example, see Weihai City Communist Party
Organization Department, ``Opinion on how to do a better job of the
`two nominations and one election' in the selection of village party
organization members,'' [Guanyu jinyibu zuohao `liangtui yixuan'
nongcun dang zuzhi chengyuan de yijian], Organization Department
Document Number 22 (2007).
\27\ In Hu Jintao's June 25 ``important speech'' to the Central
Party School, which official commentators have indicated is likely to
be a precursor to his 17th Party Congress report, Hu endorsed both
expanded popular political participation and socialist democracy, as
well as improved ``inner-Party democracy.'' Hu did not make any
endorsement of expanded popular participation in Party affairs,
however. ``Hu Jintao Gives Important Speech at Central Party School,''
Xinhua, 25 June 07.
\28\ Ibid.
\29\ ``130 Officials Caught in Election Scandals,'' Xinhua,
reprinted in China Elections and Governance (Online), 21 November 06.
\30\ ``CPC Promotes Democracy by Open Elections,'' Xinhua,
reprinted in China Elections and Governance (Online), 17 July 07.
\31\ Ji Lima, ``A New Light for Democracy within the Party''
[Dangnei minzhu xin liangxiang), China Elections and Governance
(Online), 6 August 07.
\32\ Zhang Xiaoyan, ``Enhance Inner Party Harmony by Means of
Inner-Party Democracy,'' Study Times, 8 January 07.
\33\ ``China Punishes 192 Officials for Electoral Fraud,'' China
Daily, reprinted in China Elections and Governance (Online), 2 February
07.
\34\ Kristine Kwok, ``Four Killing in Row Over Village Election,''
South China Morning Post (Online), 26 June 07; ``(In Brief) Village
Chief Kills Self,'' South China Morning Post, 29 June 07.
\35\ Ting Shi, ``Party Wants Faster Path to Reform, Says Report,''
South China Morning Post (Online), 8 August 07.
\36\ Michael Huang, ``CCP Regime Maintenance: Pragmatic, But Not
Necessarily Democratic,'' China This Week, 29 June-6 July 07.
Notes to Section III--Access to Justice
\1\ ``Last Year Total Letters and Visits Decreased Over 15
Percent,'' Radio Free Asia (Online), 28 March 06. Another source
indicates that ``disorderly petitions'' decreased by 16.9 percent over
2005. ``Central Discipline Inspection Commission: Disorderly Petitions
and Improper Petitions Decrease Greatly,'' Radio Free Asia (Online), 11
July 07. See also, CECC, 2006 Annual Report, 20 September 06, 140.
\2\ CECC, 2004 Annual Report, 5 October 04, 74.
\3\ Regulations on Letters and Visits [Xinfang tiaoli], issued 10
January 05, arts. 6-8, 33-36.
\4\ For reports on this police incentive system, see ``Ten Major
Events in Liaoning's 2004 Public Security Work'' [Liaoning gongan 2004
shi jian da shi], Liaoning Provincial Yearbook 2005(Online); Yao
Hengbin, ``Deeply Promote Activities for the Construction of Peace,
Work Hard to Create and Harmonious and Stable Social Environment''
[Shenru tuijin pingan jianshe huodong nuli chuangzao heping wending de
shehui huanjing], Jiangsu Academy of Social Sciences (Online), 27
January 05; Duan Shouliang, ``Investigation and Reflections on the
Pudong New District Conflict Mediation System'' [Pudong xinqu jiufen
jiejue jizhi diaocha yu sikao], Pudong People's Court (Online); Chen
Shuangquan, ``Reform of Sichuan's Letters and Visits System'' [Sichuan
sheng xinfang zhidu gaige], 16 November 04; ``Xinfang Becomes Indicator
of Chinese Official's Political Evaluation'' [Xinfang cheng zhongguo
guanyuan zhengji zhibiao], Yunnan Provincial Communist Party (Online);
Human Rights Watch, ``China: Rampant Violence and Intimidation Against
Petitioners,'' 8 December 05.
\5\ CECC, 2006 Annual Report, 140.
\6\ ``Last Year Total Letters and Visits Decreased Over 15
Percent'' Radio Free Asia. Another source indicates that ``disorderly
petitions'' decreased by 16.9 percent over 2005. ``Central Discipline
Inspection Commission: Disorderly Petitions and Improper Petitions
Decrease Greatly,'' Radio Free Asia.
\7\ ``The Supreme People's Procuratorate Publishes Regulations
Strengthening Petition Oversight; Uncertain Cases May Permit Hearings''
[Zuigaojian chutai guiding jiaqiang xinfang jiandu; yinan shigu ke
tingzheng], Jiancha Ribao, 14 May 07.
\8\ The document is entitled ``CCP Central Committee and State
Council Promulgate `Opinions on Further Strengthening Petition Handling
Work for the New Period'.'' See ``Central Government Requests
Correcting and Restricting Mistaken Methods of Interfering in Petition
Activities,'' China Court Network (Online), 25 June 07.
\9\ ``China To Establish National Center To Receive Public
Complaints,'' Xinhua (Online), 24 June 07.
\10\ ``Chinese Local Governments Pressure Petitioners,'' Radio Free
Asia (Online), 30 May, 07.
\11\ ``New Rules Make Life Tougher on Petitioners, Survey Finds,''
China Development Brief, 15 May 07.
\12\ ``Supreme People's Procuratorate Details New Efforts to
Prosecute Abuses of Power,'' CECC China Human Rights and Rule of Law
Update, September 2006, 4.
\13\ Supreme People's Procuratorate Provisions on the Criteria for
Filing Derelection of Duty and Rights Infringement Criminal Cases
[Zuigao renmin jianchayuan guanyu duzhi qinquan fanzui anjian lian
biaozhun de guiding], issued 26 July 06.
\14\ Yunling City Communist Party Committee (Online), ``Sichuan's
Petition System Reform, The Pressure of Political Evaluations Leads to
the Obstruction of Petitions'' [Sichuan xinfang zhidu gaige zhengyi
zhong qi hang, zhengji yali daozhi shangfang bei zu], 16 November 04.
\15\ Irene Wang, ``People's Legal Action on the Rise,'' South China
Morning Post (Online), 30 March 07; Xie Chuanjiao, ``Citizens Get New
Support from Supreme Court,'' China Daily, reprinted in China Elections
and Governance (Online), 29 March 07.
\16\ ``Being People-Centered and Reconsideration for the People--
The Responsible Person of the State Council Legislative Affairs Office
Answers Questions on the Regulations on the Implementation of the
Admninistrative Reconsideration Law,'' Xinhua (Online), 14 June 07;
Implementing Regulations of the People's Republic of China on the
Administrative Consideration Law, issued 29 May 07.
\17\ Xie Chuanjiao, ``Citizens Get New Support from Supreme
Court.''
\18\ ``Senior Official Calls for Fair Trial of Lawsuits Against
Gov't,'' Chinaview.cn, reprinted in China Elections and Governance
(Online), 27 March 07.
\19\ Luo Gan, ``Develop and Deepen Education in the Socialist Idea
of the Rule of Law and Earnestly Strengthen the Ideological and
Political Building of the Political-Legal Contingent,'' Seeking Truth,
Number 12, 16 June 06; ``Luo Gan Urges Public Security Officials to
Apply the Socialist Concept of the Rule of Law,'' Xinhua (Online), 22
September 06; Human Rights Watch, ``A Great Danger for Lawyers,'' 12
December 06.
Notes to Section III--Commercial Rule of Law
\1\ A complete and up to date compilation of key information on
China's participation in the World Trade Organization [hereinafter
WTO], including principal accession documents (Working Party report,
protocol of accession, General Council decision), schedules, trade
policy reviews and dispute case documents can be found at the WTO web
site at www.wto.org.
\2\ Ibid. See also Office of the United States Trade Representative
[hereinafter USTR] Web site at www.ustr.gov.
\3\ USTR (Online), ``WTO Case Challenging Weaknesses in China's
Legal Regime for Protection and Enforcement of Copyrights and
Trademarks,'' Trade Delivers, April 2007. See also USTR (Online),
``United States Files WTO Cases Against China Over Deficiencies in
China's Intellectual Property Rights Laws and Market Access Barriers to
Copyright-Based Industries,'' 9 April 07.
\4\ USTR (Online), ``United States Requests WTO Panel in Challenge
to China's Prohibited Subsidies,'' 12 July 07. See also USTR (Online),
``United States Files WTO Case Against China Over Prohibited
Subsidies,'' 2 February 07.
\5\ Frances Williams, ``WTO Probes China's Export Subsidy Claims,''
Financial Times (Online), 31 August 07.
\6\ ``China's Implementation of Its World Trade Organization
Commitments,'' Written Testimony of the U.S.-China Business Council, 28
September 06, submitted in response to the USTR's Request for Comments
and Notice of Public Hearing Concerning China's Compliance with WTO
Commitments. See also testimony and documents in connection with
Legislation Related to Trade with China, Hearing of the Subcommittee on
Trade, Committee on Ways and Means, U.S. House of Representatives, 2
August 07; and testimony and documents in connection with Trade with
China, Hearing of the Subcommittee on Trade, Committee on Ways and
Means, U.S. House of Representatives, 15 February 07.
\7\ For an overview of China's implementation of its WTO
commitments from a business perspective as of September 28, 2006, see
``China's Implementation of Its World Trade Organization Commitments,''
Written Testimony of the U.S.-China Business Council. See also
testimony and documents in connection with Legislation Related to Trade
with China, Subcommittee on Trade; and testimony and documents in
connection with Trade with China, Subcommittee on Trade. For a summary
of China's WTO's commitments and U.S. concerns with the structure of
China's legal regime with regard to IPR from the perspective of the
USTR, see USTR, ``WTO Case Challenging Weaknesses in China's Legal
Regime.''
\8\ Commission Staff Interviews; The American Chamber of Commerce
in Shanghai disputed reports that it had opposed the draft Labor
Contract Law. See ``Re: Press Reports Concerning AmCham-China and the
PRC Draft Labor Contract Law,'' The American Chamber of Commerce in the
People's Republic of China (Online), 18 June 07 . US-China Business
Council, ``Comments on the Draft People's Republic of China Law on
Employment Contracts (Draft of December 24, 2006);'' Sarah Schafer,
``Now They Speak Out,'' Newsweek International (Online), 28 May 07;
Andrew Batson and Mei Fong, ``China Toils Over New Labor Law,'' The
Wall Street Journal (Online), 7 May 2007; ``Undue Influence:
Corporations Gain Ground in Battle over China's New Labor Law,'' Global
Labor Strategies, March 2007; ``The Chinese Draft Contract Law--A
Global Debate,'' CSR Asia, 25 April 2007; ``Behind the Great Wall of
China: U. S. Corporations Opposing New Rights for Chinese Workers,''
Global Labor Strategies (Online), last viewed 7 October 07.
\9\ Commission Staff Interviews; US-China Business Council,
``Comments on the Draft People's Republic of China Law on Employment
Contracts (Draft of December 24, 2006); Batson and Fong, ``China Toils
Over New Labor Law;'' Sarah Schafer, ``Now They Speak Out;'' ``The
Chinese Draft Contract Law,'' CSR Asia; ``Behind the Great Wall of
China,'' Global Labor Strategies; ``Twenty -Seven Democrats Ask Bush to
Support China's Proposed Labor Law,'' Daily Labor Report, No. 213, 3
November 2006, A-8.
\10\ CECC, 2006 Annual Report, 20 September 06, 145-148.
\11\ CECC, 2004 Annual Report, 5 October 04, 83.
\12\ USTR, 2007 Special 301 Report, 30 April 07, 2.
\13\ Andrew C. Mertha, The Politics of Piracy: Intellectual
Property in Contemporary China (Ithaca, Cornell University Press,
2005); Intellectual Property Protection as Economic Policy: Will China
Ever Enforce its IP Laws?, Staff Roundtable of Congressional-Executive
Commission on China, 16 May 05. See also ``Campaign Targets IPR
Infringement, Censors Political and Religious Publications,'' CECC
Virtual Academy (Online), 4 January 07; and Trade with China,
Subcommittee on Trade, Statement of U.S.-China Business Council.
\14\ ``China Seizes 58 Million Illegal Publications in Three
Months,'' People's Daily (Online), 27 November 06; ``Beijing Shops
Selling Pirated Audio and Video Products Will Be Fined At Least 10,000
Yuan,'' People's Daily (Online), 24 July 06.
\15\ ``Campaign Targets IPR Infringement, Censors Political and
Religious Publications,'' CECC Virtual Academy.
\16\ ``100 Day Anti-Piracy Action Confiscates Over 33,000,000
Illegal Publications'' [Fan daoban bairi xingdong shouji feifa chubanwu
yu 3300 wan jian], Xinhua (Online), 16 September 06.
\17\ ``100 Day Anti-Piracy Action: 368 Business Licenses
Rescinded'' [Fan daoban bairi xingdong: 368 jia danwei jingying
xukezheng bei diaoxiao], Xinhua (Online), 17 September 06.
\18\ Overall, China's Ministry of Culture reported that in 2006
Chinese officials had confiscated approximately 110 million illegal
DVDs and CDs. ``Chinese Watchdog Head Slams Abuse of Copyright
Disputes,'' People's Daily (Online), 05 September 07.
\19\ In its 2004 Annual Report, the Commission criticized China for
its failure to ``make concrete progress [toward better IPR
enforcement]'' by joining the three World Intellectual Property
Organizaton (WIPO) treaties, and for the Supreme People's Court's
refusal to carry out China's commitment to expand the range of IPR
violations punishable by criminal sanction by lowering the criminal
enforcement threshold in its laws. CECC, 2004 Annual Report, 88-89.
These treaties define a wide range of intellectual property rights for
performers and creators of computer programs, databases, and
phonograms, and obligate contracting parties to legislate and provide a
series of legal protections and remedies for these rights holders in
case of infringement. WIPO Performances and Phonograms Treaty, Dec. 20,
1996; WIPO Copyright Treaty, Dec. 20, 1996.
\20\ Interpretation of the Supreme People's Court and the Supreme
People's Procuratorate on Several Issues of Concrete Application of Law
in Handling Criminal Cases of Infringing Intellectual Property (II)
[Zuigao renmin fayuan zuigao renmin jianchayuan guanyu banli qinfan
zhishichanquan xingshi anjian juti yingyong falu ruogan wenti de
jieshi], issued 5 April 07; ``Chinese Watchdog Head Slams Abuse of
Copyright Disputes,'' People's Daily (Online), 5 September 07.
\21\ USTR, 2007 Special 301 Report, 18-19.
\22\ Trade with China, Subcommittee on Trade, Statement of U.S.-
China Business Council.
\23\ ``EU-China Trade Ministerial Meeting 12 June 2007,'' Europa
(Online), 12 June 07.
\24\ USTR, 2007 Special 301 Report, 42-52.
\25\ USTR, 2007 Special 301 Report, 42-43.
\26\ WTO, ``China--Measures Affecting the Protection and
Enforcement of Intellectual Property Rights: Request for Consultation
by the United States,'' WT/DS362/1, 16 April 07 (communication dated
April 10, 2007 from the delegation of the United States to the
delegation of China and to the Chairman of the Dispute Settlement
Body); USTR (Online), ``WTO Case Challenging Weaknesses in China's
Legal Regime;'' USTR (Online), ``United States Requests WTO Panel in
Challenge to China's Prohibited Subsidies;'' WTO (Online), ``Dispute
Settlement: Request of Panel Establishment,'' 31 August 07.
\27\ WTO, ``China--Measures Affecting the Protection and
Enforcement of Intellectual Property Rights: Request for Consultation
by the United States,'' Section I.
\28\ Ibid., Section II.
\29\ Ibid., Section III.
\30\ Ibid., Section IV.
\31\ USTR (Online), ``United States Requests WTO Panel in Case
Challenging Deficiencies in China's Intellectual Property Rights
Laws,'' 13 August 07; WTO, ``Dispute Settlement: Request of Panel
Establishment.''
\32\ USTR and U.S Department of Commerce, Subsidies Enforcement
Annual Report to the Congress, 19-22. USTR, 2006 Report to Congress of
China's WTO Compliance, 11 December 06, 41-43.
\33\ Ibid.
\34\ China's concern over industrial reform, unemployment, and
worker unrest in steel and other heavy industries in the Northeast are
discussed in many places, and have been discussed in interviews with
Commission staff. See also Li Wenxi, ``Development Forges New Glory''
[Fazhan zujiu huihuang], Liaoning Public Security Bureau (Online), 5
November 02. Li was at the time Deputy Communist Party Secretary of
Liaoning and Chief of the Provincial Public Security Bureau. See also
Chen Lihua, ``An Analysis of Suddenly Occuring Mass Incidents'' [Dui
quntixing tufa shijian de lixing fenxi], Research Journal of Party and
Government Cadres, No. 7, 2002. Chen is an analyst at the Liaoning CCP
School.
\35\ Price, et al., ``The China Syndrome'' ; ``Official Comments of
the American Iron and Steel Institute to the Committee on Ways and
Means Subcommittee on Trade, Regarding H.R. 1229, `The Non-Market
Economy Trade Remedy Act of 2007'.''
\36\ ``Money for Metal: A Detailed Examination of Chinese
Government Subsidies to its Steel Industry,'' Wiley Rein LLP, July
2007, 30-31, citing Baosteel Annual Report.
\37\ Price, et al., ``The China Syndrome,'' 19.
\38\ Alan H. Price et al., ``The China Syndrome: How Subsidies and
Government Intervention Created the World's Largest Steel Industry,''
Wiley Rein and Fielding LLP (Online), July 2006, 18-22.
\39\ Ibid., 35-37.
\40\ ``Money for Metal,'' Wiley Rein LLP, 42.
\41\ Ibid., 77-78; Price, et al., ``The China Syndrome,'' 19, 53-
55.
\42\ National Development and Reform Commission, Order of the
National Development and Reform Commission, No. 35, Policies for
Development of Iron and Steel Industry, 8 July 05.
\43\ Ibid.
\44\ USTR, 2007 National Trade Estimate Report on Foreign Trade
Barriers, 2 April 07.
\45\ Price, et al., ``The China Syndrome,'' 18-22.
\46\ USTR, Docket No. WTO/DS-358, ``WTO Dispute Settlement
Proceeding Regarding China--Certain Measures Granting Refunds,
Reductions or Exemptions From Taxes and Other Payments,'' Federal
Register, February 21, 2007 (Volume 72, Number 34), 7914-7915.
\47\ Ibid.
\48\ USTR, ``WTO Dispute Settlement Proceeding Regarding China--
Certain Measures Granting Refunds, Reductions or Exemptions From Taxes
and Other Payments''; Julia Qin, ``The China Subsidies Case,''
International Economic Law and Policy Blog (Online), February 2007.
\49\ USTR (Online), ``United States Requests WTO Panel in Challenge
to China's Prohibited Subsidies.'' ; ``WTO Sets up Panel to Investigate
China Tax Regime,'' Reuters (Online), 31 August 07; ``WTO Accepts U.S.,
Mexico Trade Complaint Against China,'' Agence France-Presse, reprinted
in Industry Week (Online), 4 September 07.
\50\ ``WTO Sets up Panel to Investigate China Tax Regime,''
Reuters; ``WTO Accepts U.S., Mexico Trade Complaint Against China,''
Agence France-Presse.
\51\ Williams, ``WTO Probes China's Export Subsidy Claims'' ;
``Politics `Are to Blame' for WTO Probes,'' China Daily (Online), 4
September 07; Ibid.
\52\ See for e.g., Canice Chan and Ashley M. Howlett, ``China
Issues New Regulations Opening The Market For Crude Oil,'' Jones Day
Commentaries (Online), January 2007.
\53\ Two licenses will be available under the new licensing system:
a crude oil sale license (``Sale License'') and a crude oil storage
license (``Storage License''). See Ibid.
\54\ China National Petroleum Corporation (``CNPC``), established
in 1988, replaced China's Ministry of Petroleum.
\55\ The new regulatory scheme defines three types of licenses: oil
product wholesale licenses (``OPWL''), oil product storage licenses
(``OPSL''), and oil product retail licenses (``OPRL'').
\56\ The Interim Regulation on the Administration of the Oil
Product Market issued by the Ministry of Commerce in 2004 defined oil
products more narrowly.
\57\ Chan and Howlett, ``China Issues New Regulations Opening The
Market For Oil Products.''
\58\ Ibid.
\59\ Angela Wang, ``Foreign Participation In Chinese Banks Under
New Investment Rules,'' Mondaq (Online), 22 March 07.
\60\ Invested solely by one foreign bank or together with another
foreign financial institution(s) and with minimum registered capital 1
billion yuan (or foreign currency equivalent). See Wang, ``Foreign
Participation.''
\61\ Invested by a foreign financial institution(s) together with a
PRC corporation(s) or enterprise(s) and with minimum registered capital
1 billion yuan (or foreign currency equivalent). See Wang, ``Foreign
Participation.''
\62\ Branch office of a foreign bank with minimum allocation of 200
million yuan in operational. See Wang, ``Foreign Participation.''
\63\ Representative office of a foreign bank. No capital
requirement.
\64\ The sole shareholder or controlling shareholder of a WFOB and
the controlling shareholder of a JVB must satisfy the following
conditions: be a commercial bank; with total assets of no less than
US$10 billion in the year preceding application; have a representative
office within the PRC for at least 2 years (in the case of a WFOB); and
have a representative office within the PRC (in the case of a JVB).
\65\ Pursuant to Article 29 of the new Regulations, both WFOBs and
JVBs are allowed to conduct a range of foreign exchange and RMB banking
business including the taking of RMB deposits from the public; short,
medium and long term lending; and bank card business.
\66\ Guidance on Compliance Risk Management for Commercial Banks
[Shangye yinhang hegui fengxian guanli zhiyin], issued 25 October 06;
``Guide on Compliance Risk Management for Commercial Banks,'' Lehman,
Lee & Xu (Online), 17 April 07; ``Summary of Selected New Laws and
Regulations from October 1, 2006 to November 10, 2006,'' 3 China Law
Reporter, 20-21 (March 2007).
\67\ Susan Finder, ``PRC Anti-Money Laundering Law'' China Law
Update (Online), 3 November 06. See also Peter Wong, ``The New PRC
Anti-Money Laundering Law and Ancillary Regulations,'' Mondaq (Online),
26 April 07; and ``China Adopts Anti-Money Laundering Law,'' Xinhua,
reprinted in China Daily (Online), 31 October 06.
\68\ People's Bank of China Decree No. 1, Rules for Anti-Money
Laundering by Financial Institutions, issued 14 November 06. ; People's
Bank of China Decree No. 1, Rules on Reporting Suspicious Transactions
for Terrorist Financing by Financial Institutions, issued 11 June 07.
\69\ National People's Congress (Online), ``Anti-Monopoly Law
Adopted,'' 31 August 07. See also ``China Adopts Anti-Monopoly Law,''
Xinhua, reprinted in China Daily (Online), 30 August 07. See also
Donald C. Clarke, ``China Passes Antimonoply Law,'' Chinese Law Prof
Blog (Online), 30 August 07.
\70\ Factors to be considered are the special nature of the
contract and the performance of the obligations under the contract by
the parties (``performance obligation''). According to the Provisions,
domicile is the key factor in determining performance obligation. See
David Tang and Bill Zhang, ``China's Supreme Court Broadens Mandatory
Application of PRC Laws to Foreign-Related Contractual Disputes,''
China Watch, Thelen Reid Brown Raysman and Steiner LLP (Online), 13
August 07.
\71\ Ibid.
\72\ Robin Gerofsky Kaptzan, ``A Move Forward in China's
Implementation of its Unfair Competition Law,'' 3 China Law Reporter, 5
(March 2007).
\73\ Under Article 9 of the Interpretation, when making a
determination of whether allegedly proprietary information satisfies
the criteria of being ``unknown to the public,'' for example, courts
are instructed to consider, among other things, whether the size,
materials and components of the product in question are observable by
the general public after the a product enters the market; whether
information about the product appears in print or other mass media;
whether the product is known to have been on display at exhibitions;
whether the product or information can be obtained through public
channels; and the ease with which the product or information may be
obtained without paying any consideration. See Interpretation of the
Supreme People's Court on Some Matters about the Application of Law in
the Trial of Civil Cases Involving Unfair Competition [Zui gao renmin
fayuan guanyu shenli bu zhengdang jingzheng minshi anjian yingyong falv
ruogan wenti de jieshi], issued 12 January 07, art. 9.
\74\ Kaptzan, ``A Move Forward in China's Implementation of its
Unfair Competition Law,'' provides a useful overview.
\75\ Ibid. See also Mark Korda, ``Enter the Dragon--China Joins the
Corporate Insolvency Arena,'' Mondaq (Online), 25 April 07.
\76\ See ``New Law Ushers in Sweeping Changes to Bankruptcy Regime
in China,'' Morrison Foerster Legal Updates and News (Online),
September 2006.
\77\ Dan Harris, ``China's New Bankruptcy Law -- First Report From
The Ground,'' China Law Blog (Online), 12 June 07. For further
analysis, also see e.g., Dan Harris, ``China's New Bankruptcy Law,''
China Law Blog (Online), 23 October 06; and Korda, ``Enter the
Dragon.''
\78\ Korda, ``Enter The Dragon.''
\79\ Stephen Nelson, ``The PRC Enterprise Income Tax Law and its
Impact on Foreign Investments,'' 3 China Law Reporter (May 2007).
\80\ Ibid.
\81\ PRC Partnership Enterprise Law, enacted 23 February 97,
amended 27 August 06; Lily Han, ``The New Partnership Enterprise Law of
the PRC,'' Lehman, Lee & Xu (Online), 7 December 06; ``Summary of
Selected New Laws and Regulations from October 1, 2006 to November 10,
2006,'' 3 China Law Reporter, 17-19 (March 2007).
\82\ Regulation on Administration of Commercial Franchise, issued
14 March 07. See also Angela Wang, ``Further Regulations Relaxing
Commercial Franchising in China,'' Mondaq (Online), 18 July 07 ; and
Kalley Chan and Zhang Tianhui, ``Commercial Franchise Market Shuffle--
Regulation on Administration of Commercial Franchises,'' King and Wood
China Bulletin (Online), April 2007.
\83\ Ibid.
\84\ Ibid.
\85\ Terence P. Stewart, et al., ``More Than 50 Year of Trade Rule
Discrimination on Taxation: How Trade with China Is Affected,'' Trade
Lawyer's Advisory Group, August 2007, 133-142.
\86\ ``Tax Rebates for Exports Increase 62.5 billion RMB in the
First Half of the Year'' [Shangban nian chukou tuishui tongbi zengjia
625 yi yuan], China Industry News, reprinted in www.steelhome.cn, 18
July 07.
\87\ Stewart, et al., ``More Than 50 Year of Trade Rule
Discrimination on Taxation,'' 146-166.
\88\ Ibid; See also KPMG China Alert: Tax and Regulatory
Developments, Issue 30, November 2006.
\89\ A complete list of the products and their revised export tax
rebates is contained in Ministry of Finance State Taxation Bureau
Notice on Adjusting Tax Rebate Rates for Exports for Steel Products
[Caizheng bu guojia shuiwu zongju guanyu tiaozheng gangcai hanpin
chukou tuishui lu de tongzhi], issued 9 April 07, effective 15 April
07; Hunan Loudi Municipality Finance Department (Online), ``Financial
News'' [Caizheng Xinxi], 30 July 07.
\90\ ``China To Adjust Export Rebate Policy on 2,831 Commodities,''
Xinhua, 20 June 07; Stewart, et al, More Than 50 Year of Trade Rule
Discrimination on Taxation,'' 141-142.
\91\ See PRC Constitution, art. 10; PRC Land Management Law,
enacted 25 June 86, amended 29 December 88, amended 28 August 04, art.
2.
\92\ See PRC Property Law, issued 16 March 07, effective 1 October
07.
\93\ Dan Harris, ``China's New Property Law, Part I -
Introduction,'' China Law Blog (Online), 15 May 07.
\94\ See PRC Constitution, art. 11, clause 2.
\95\ Article 10 of the new Property Law reads: ``the State applies
a uniform real property registration system.''
\96\ The Land Administration Law provides that registration of the
certificates that prove an individual's rights in the land is required
to create a property interest. See PRC Land Administration Law, art.
13.
\97\ Ibid., art. 22. Article 22 provides ``Real property
registration fees shall be collected on each piece, and may not be
collected according to the size, volume or on the basis of certain
proportion of the value of the real property. The specific charging
rates shall be jointly determined by the relevant departments under the
State Council and the pricing administration authority.''
\98\ Pamela N. Phan, Enriching the Land or the Political Elite?
Lessons from China on Democratization of the Urban Renewal Process, 14
Pac. Rim. L. & Pol'y J. 607, 627-629 (2005).
\99\ Helen H.C. Peng and David Y. Shen, ``Property Law Lays Legal
Foundation for Protection of Property in China,'' 3 China Law Reporter,
12 (May 2007). See also Harris, ``China's New Property Law, Part I--
Introduction.''
\100\ Ibid. Article 73 of the new Property Law, which expressly
provides that the ``Definite Common Elements'' includes green land,
road, public area, public facilities and the houses used for the
property management, reads: ``the roads within the building zone shall
be commonly owned by the owners, except the public roads of cities or
towns. The green lands within the building area shall be commonly owned
by all the owners, except the public green lands of cities or towns or
those which are expressly ascribed to individuals. The other public
places, common facilities and houses used for real property services
within the building zone shall be commonly owned by all the owners.''
\101\ Ibid. Article 74 of the new Property Law which gives detail
provisions on the garages and parking place which fall into the
``Indefinite Common Elements,'' reads: ``The parking places and garages
that are within the building area and planned for parking cars shall be
used to satisfy, above all else, the needs of the owners. The ownership
of the parking places and garages shall be determined by the parties
involved by way of selling, donation or leasing, etc. The parking
places occupying the roads or other fields commonly owned by all owners
shall be commonly owned by all the owners.''
\102\ Ibid. Section 42 seems to address improper transfers, but
says little of legal consequence: ``The state engages in special
protection of agricultural land, severely limits the conversion of
agricultural land for construction purposes and controls the quantity
of land used for construction purposes. It is not permissible to seize
collectively owned land in violation of the limits and procedures
provided by law.''
\103\ Helen H.C. Peng and David Y. Shen, ``Property Law Lays Legal
Foundation for Protection of Property in China,'' 3 China Law Reporter,
12 (May 2007).
\104\ Ashley M. Howlett, ``Restrictions for Foreign Investors in
China's Real Estate Market,'' Jones Day Commentaries (Online), July
2007.
Notes to Section III--Impact of Emergencies: Food Safety, Product
Quality, and Climate Change
\1\ Ministry of Health (Online), Causes of Food Poisoning in 2006,
Chinese Health Statistical Digest, 1 June 07. In 2003, the Ministry of
Health reported that there were 1,481 cases, which affected 29,600
people, with 262 deaths. Ministry of Health (Online), Causes of Food
Poisoning and Causes in 2003, Chinese Health Statistical Digest, 21 May
04.
\2\ ``Fixing China's Food Safety Issues Will Require a $100 Billion
Investment, According to New A.T. Kearney Research,'' A.T. Kearney, 26
June 07; Audra Ang, ``China Calls for More Testing of Exports,''
Associated Press (Online), 6 June 07.
\3\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions in China,'' 29 Asian Perspective 6, 7
(2005); Drew Thompson, ``China's Food Safety Crisis: A Challenge to
Global Health Governance,'' 7 China Brief 8, 8 (2007).
\4\ David Barboza, ``Some Suspect Chemical Mix in Pet Food,'' New
York Times (Online), 12 April 07.
\5\ Frank Ahrens, ``FDA Halts Imports of Some Chinese Seafood,''
Washington Post (Online), 29 June 07,
\6\ Yang Yang and Jennifer L. Turner, ``Food Safety in China,''
China Environmental Forum, Woodrow Wilson Center for International
Scholars, 28 July 07.
\7\ Ibid.
\8\ Elizabeth C. Economy, ``The Great Leap Backward?,'' Foreign
Affairs (Online), September/October 2007, 2.
\9\ Yang Yang and Turner, ``Food Safety in China.''
\10\ Zhao Huanxin, ``China's Food Safety Beset by Challenges,''
China Daily (Online), 11 July 07; Thompson, ``China's Food Safety
Crisis: A Challenge to Global Health Governance,'' 8.
\11\ State Council Information Office (Online), White Paper on
China's Food Quality and Safety, 17 August 07, 1.
\12\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions,'' 10-13.
\13\ For example, a 2003 survey by the China Consumers Association
reports that villagers are most worried about product quality and
substandard and counterfeit products. Ibid., 21-22.
\14\ Yan Jiangying, a representative from the SFDA notes that, ``As
a developing country, China's food and drug supervision work began late
with weak foundations. Therefore, the situation is not very
satisfactory.'' Zhao Huanxin, ``China's Food Safety Beset by
Challenges;'' David Barboza and Walt Bogdanich, ``China Shuts 3
Companies over Safety of Products,'' New York Times (Online), 21 July
07; Zhang Pinghui, ``Focus To Be on Harmful Drugs, Chemicals in Feed,''
South China Morning Post (Online), 26 July 07.
\15\ Barboza and Bogdanich, ``China Shuts 3 Companies over Safety
of Products.''
\16\ Ibid.; David Barboza, ``Chinese Regulators Find Widespread
Abuses in Food Industry,'' International Herald Tribune (Online), 27
June 07.
\17\ Andrew Martin and Griff Palmer, ``China Not Sole Source of
Dubious Food,'' New York Times (Online), 13 July 07.
\18\ CECC Staff Search. See also, Hu Ying, ``China Struggles To
Digest Food Safety Laws,'' Asia Times (Online), 28 August 07.
\19\ David Barboza, ``Another Consumer Product Disaster in China:
Exploding Mobile Phone Batteries,'' International Herald Tribune
(Online), 6 July 07; Yang Yang and Turner, ``Food Safety in China,''4.
\20\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions'' 31.
\21\ For example, see the Zhejiang province Food Safety Information
Net: http://www.zjfs.gov.cn/; the Shaanxi province Food Safety
Information Net: http://www.sxfs.gov.cn/; and the Guangzhou city Food
Safety Information Net: http://www.gzfood.net. Ibid., 31.
\22\ Zhejiang province, through the provincial- and local-level
industry and commerce bureaus, established a rural consumer rights
protection network, including consumer associations and consumer rights
protection stations. Among administrative villages that lacked an
association or a station, the industry and commerce bureau would
cooperate with the township- or county-level government to establish
consumer rights protection points that designated personnel to mediate
disputes or complaints that were filed by rural consumers. State
Administration of Industry and Commerce Government Affairs Information
(Online), ``Problems with the Rural Consumer Rights Protection Network,
and Countermeasures'' [Nongcun xiaofei weiquan jiandu wangluo jianshe
cunzai de wenti ji duice (zhejiang sheng ningbo shi gongshang ju)], 7
July 06; Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions,'' 34.
\23\ Zhejiang Rural Citizens Do Not Have To Leave the Village In
Order to Have Their Rights Safeguarded'' [Zhejiang nongmin weiquan
buyong chu cun], Zhejiang Business (Online), 15 December 05.
\24\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions,'' 34.
\25\ Ibid., 27; Zhao Huanxin, ``China's Food Safety Beset by
Challenges;'' State Council Information Office, White Paper on China's
Food Quality and Safety, 4.
\26\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions,'' 27.
\27\ Ibid.; Zhao Huanxin, ``China's Food Safety Beset by
Challenges.''
\28\ State Council Information Office, White Paper on China's Food
Quality and Safety, 4.
\29\ Don Lee and Abigail Goldman, ``Gluten Factory Had a Toxic
History,'' Los Angeles Times (Online), 9 May 07.
\30\ ``Premier: Food Safety a Top Priority,'' China Daily (Online),
26 July 07; ``President Hu Stresses the Importance of Farm Produce
Safety,'' Xinhua (Online), 25 April 07.
\31\ ``China To Tighten Control of Antibiotics in Seafood,''
Reuters (Online), 25 July 07; ``China Strengthening Food Rules,''
Associated Press, reprinted in China Daily (Online), 25 July 07.
\32\ ``China Strengthening Food Rules,'' Associated Press.
\33\ ``Amendments to Food Safety Standards Completed,'' China Daily
(Online), 4 July 07; ``Premier: Food Safety a Top Priority,'' China
Daily.
\34\ ``China To Tighten Control of Antibiotics in Seafood,''
Reuters.
\35\ Ibid.
\36\ The Plan was approved by the State Council in April 2007.
``China Vows Better Food Safety,'' Wall Street Journal (Online), 7 June
07; ``China To Fight Unsafe Food and Medicine,'' Reuters, reprinted in
Toronto Star (Online), 5 June 07; ``Former Head of China's Drug
Watchdog Executed,'' Xinhua (Online), 10 July 07; ``Amendments to Food
Safety Standards Completed,'' China Daily.
\37\ Ibid.; ``China To Tighten Control of Antibiotics in Seafood,''
Reuters; Zhao Huanxin, ``China's Food Safety Beset by Challenges.''
\38\ Beijing municipal government has already made similar
provisions in local food safety regulations. Waikeung Tam and Dali
Yang, ``Food Safety and the Development of Regulatory Institutions,''
32-33.
\39\ ``Amendments to Food Safety Standards Completed,'' China
Daily.
\40\ State Food and Drug Administration (Online), ``Main
Responsibilities,'' last visited 27 August 07.
\41\ General Administration of Quality Supervision, Inspection and
Quarantine (Online), ``General [sic] Administration of Quality
Supervision, Inspection and Quarantine of the People's Republic of
China,'' last visited 27 August 07.
\42\ PRC Central People's Government (Online), ``Ministry of
Health,'' last visited 30 August 07; Information Office of the State
Council, White Paper on China's Food Quality and Safety, 4.
\43\ Information Office of the State Council, White Paper on
China's Food Quality and Safety, 3.
\44\ Ministry of Commerce (Online), ``Main Mandate of the Ministry
of Commerce,'' last visited 30 August 07.
\45\ State Council Information Office, White Paper on China's Food
Quality and Safety, 3-4.
\46\ Hangzhou Municipal Food Safety Commission (Online), ``Hangzhou
Municipal Food Safety Commission Public Notice,'' 15 March 05.
\47\ One of the four ``monitoring links'' set forth in the Decision
on Further Strengthening Food Safety Supervision, issued by the State
Council in 2004. State Council Information Office, White Paper on
China's Food Quality and Safety, 3.
\48\ The Hangzhou Municipal Culture, Radio, Television, and News
Publishing Bureau is a combination of three bureaus: the culture
bureau, the radio and television bureau, and the news publishing
bureau. Hangzhou Municipal Culture, Radio, Television, and News
Publishing Bureau (Online), ``Hangzhou Municipal Culture, Radio,
Television, and News Publishing Bureau General Situation,'' last
visited 28 August 07.
\49\ One of the four ``monitoring links'' set forth in the Decision
on Further Strengthening Food Safety Supervision, issued by the State
Council in 2004. State Council Information Office, White Paper on
China's Food Quality and Safety, 4.
\50\ Ibid., 3.
\51\ Ibid.
\52\ ``Key Dates in China Export Scares,'' Wall Street Journal
(Online), 7 August 07. Toothpaste exported from China containing
diethylene glycol has been confiscated or banned in the United States,
Singapore, Panama, the Dominican Republic, South Africa, Australia,
Nicaragua, Greece, and Poland. The New York Times reports the figure of
at least 100 deaths from the use of cough medicine containing
diethlyene glycol in Panama. Jake Hooker, ``Chinese Company Linked to
Deaths Wasn't Licensed,'' New York Times (Online), 9 May 07.
\53\ Andrew Batson, ``China's Safety Failures Include Toys Sold at
Home,'' Wall Street Journal (Online), 2 July 07.
\54\ Walt Bogdanich, ``F.D.A. Tracked Poisoned Drugs, but Trail
Went Cold in China,'' New York Times (Online), 19 June 07.
\55\ A U.S. expert has noted that in the area of packaging
standards and pricing alone, China has more than 30 laws and
regulations. ``Can China Restore Its Exports Image?,'' Financial Times
(Online), 21 August 07.
\56\ Bogdanich, ``F.D.A. Tracked Poisoned Drugs, but Trail Went
Cold in China;'' David Barboza, ``China Yields to Inquiry on Pet
Food,'' New York Times (Online), 24 April 07.
\57\ For example, a 2003 China Consumers Association survey found
that villagers are most concerned about product quality and substandard
and counterfeit goods. Waikeung Tam and Dali Yang, ``Food Safety and
the Development of Regulatory Institutions,'' 21-22.
\58\ ``Former Head of China's Drug Watchdog Executed,'' Xinhua;
Geoff Dyer, ``China Executes Ex-Food Safety Chief,'' Financial Times
(Online), 10 July 07.
\59\ Ibid.
\60\ Josephine Ma, ``Drug Makers Face Higher Standards,'' South
China Morning Post (Online), 12 July 07.
\61\ Zhuang Pinghui, ``8.8b To Be Spent on Food and Drug Safety,''
South China Morning Post (Online), 8 August 07.
\62\ Waikeung Tam and Dali Yang, ``Food Safety and the Development
of Regulatory Institutions,'' 10-13.
\63\ Ibid.
\64\ The New York Times reports the figure of at least 100 deaths
from the use of cough medicine containing diethlyene glycol in Panama.
Hooker, ``Chinese Company Linked to Deaths Wasn't Licensed;'' ``China
Says Fatal Drug Outside Scope of Regulators,'' Reuters (Online), 8 May
07.
\65\ Ibid.
\66\ ``Can China Restore Its Exports Image?,'' Financial Times;
Thompson, ``China's Food Safety Crisis: A Challenge to Global Health
Governance,'' 9.
\67\ Ariana Eunung Cha, ``Safety Falters as Chinese Quiet Those Who
Cry Foul,'' Washington Post (Online), 19 July 07.
\68\ Ibid.; ``Reposting `Collusion Between Government and
Pharmaceutical Company' Essay Ruined My Life'' [Zhuanzai
`guanyaogoujie' wangwen daluan wo de yisheng], Beijing News (Online), 9
April 07.
\69\ The essay helped in part to initiate investigations against
Zheng Xiaoyu, former Commissioner of the SFDA, and Cao Wenzhuang,
former director of SFDA's drug registration department. Cha, ``Safety
Falters as Chinese Quiet Those Who Cry Foul.''
\70\ Ibid.
\71\ ``Reposting `Collusion Between Government and Pharmaceutical
Company' Essay Ruined My Life,'' Beijing News.
\72\ ``[Zhang Zhijian] Who Was Formerly Wrongfully Detained by Law
Enforcement Officials, Received 24,000 Yuan in Compensation Yesterday''
[Ceng bei sifa jiguan cuowu jiya 9 ge duo yue, zuori huo pei 2.4 wan],
Southern Metropolitan Daily (Online), 21 July 07.
\73\ Cha, ``Safety Falters as Chinese Quiet Those Who Cry Foul.''
\74\ Ibid.
\75\ Ibid.
\76\ PRC State Compensation Law, enacted 12 May 94, art. 3.
\77\ The exact language is ``Renlei huodong paifang de wenshi qiti
daozhi yuelaiyue yanzhong de quanqiu qihou bianhua wenti.'' Ministry of
Science and Technology (Online), ``MOST, Six Other Agencies Release
China's Climate Change National Assessment Report'' [Keji bu deng liu
buwei lianhe fabu ``qihou bianhua guojia pinggu baogao''], 26 December
06; Ling Li, ``China Releases First National Report on Climate
Change,'' China Watch (Online), 11 January 07.
\78\ For example, if China decides to accept classification as a
developed country, or if there is a diversification in the types of
commitments that countries can accept that go beyond the developing
versus developed country framework. Briefing on China, the Economy, and
Global Warming, Panel hosted by the U.S. House of Representatives
Committee on Foreign Affairs and National Environmental Trust, 23 July
07.
\79\ Ibid.
\80\ CECC, 2004 Annual Report, 5 October 04, 1; ``China To Enact
Law on Circular Economy,'' Xinhua (Online), 26 August 07.
\81\ Briefing on China, the Economy, and Global Warming, Panel
hosted by the U.S. House of Representatives Committee on Foreign
Affairs and National Environmental Trust, 23 July 07.
\82\ John Vidal, ``China Could Overtake US as Biggest Emissions
Culprit by November,'' The Guardian (Online), 25 April 07.
\83\ Ibid.
\84\ Briefing on China, the Economy, and Global Warming.
\85\ United Nations Framework Convention on Climate Change
(Online), Status of Ratification, 11 April 07.
\86\ Briefing on China, the Economy, and Global Warming.
\87\ National Development and Reform Commission (Online), The
People's Republic of China National Climate Change Program, June 2007,
2; Pew Center on Global Climate Change (Online), ``Climate Change
Mitigation Measures in the People's Republic of China,'' International
Brief 1, April 2007.
\88\ Pew Center on Global Climate Change, ``Climate Change
Mitigation Measures in the People's Republic of China.''
\89\ Briefing on China, the Economy, and Global Warming.
\90\ Pew Center on Global Climate Change, ``Climate Change
Mitigation Measures in the People's Republic of China.''
\91\ Ting Shi, ``Wen Warns of Grim Environmental Challenge,'' South
China Morning Post (Online), 10 July 07. China had an increase in
energy consumption per unit of GDP for the years 2003 to 2005. Briefing
on China, the Economy, and Global Warming.
\92\ ``Question Marks over China's Climate Commitment,'' Agence
France-Presse (Online), 6 May 07; U.S.-Chinese Economic and Security
Review Commission, China's Energy Consumption and Opportunities for
U.S.-China Cooperation to Address the Effects of China's Energy Use, 14
June 07, Testimony of Elizabeth Economy, C.V. Starr Senior Fellow and
Director, Asia Studies, Council on Foreign Relations.
\93\ Fu Jing, ``Local Gov'ts `Ignoring' Green Model,'' China Daily
(Online), 23 July 07.
\94\ Ling Li, ``China Releases First National Report on Climate
Change.''
\95\ National Development and Reform Commission, The People's
Republic of China National Climate Change Program; Daniel Griffiths,
``China's Mixed Messages on Climate,'' BBC (Online), 7 May 07;
``Analysis: PRC Climate Plan Aims To Deflect Criticism Prior to G-8,''
Open Source Center (Online), 7 June 07.
\96\ Joanna I. Lewis, ``China's Climate Change Strategy,'' 7 China
Brief 10, 11 (2007).
\97\ Briefing on China, the Economy, and Global Warming.
\98\ ``S. Korea Increases Monitoring Posts for Yellow Dust in
China,'' Yonhap News (Online), 5 April 07; ``China Works To Fight
Desertification in Xinjiang,'' China Daily (Online), 10 July 07.
\99\ Jeff Goodell, ``Capital Pollution Solution?,'' New York Times
(Online), 30 July 06.
\100\ U.S. Environmental Protection Agency (Online), ``Cap and
Trade Essentials,'' last visited 23 August 07.
\101\ Goodell, ``Capital Pollution Solution?,'' New York Times;
``Carbon Markets Create a Muddle,'' Financial Times (Online), 26 April
07; Michael Gerson, ``Hope on Climate Change? Here's Why,'' Washington
Post (Online), 15 August 07.
\102\ U.S. Environmental Protection Agency, ``Cap and Trade
Essentials.''
\103\ Ibid.
Notes to Section IV--Tibet
\1\ PRC Constitution, art. 36 (``enjoy freedom of religious
belief''), art. 116 (``enact autonomy regulations and specific
regulations in the light of the political, economic, and cultural
characteristics of the nationality or nationalities''), art. 119
(``independently administer educational, scientific, cultural, public
health, and physical culture affairs''), art. 121 (``employ the spoken
and written language or languages in common use''). Regional Ethnic
Autonomy Law, enacted 31 May 84, amended 28 February 01, art. 11
(``guarantee the freedom of religious belief''), art. 19 (``enact self-
governing regulations and separate regulations in the light of the
political, economic, and cultural characteristics''), art. 21 (``use
the language or languages commonly used in the locality;. . . the
language of the nationality exercising regional autonomy may be used as
the main language''), art. 36 (``decide on educational plans''), art.
37 (``independently develop education for the nationalities''), art. 38
(``develop literature, art, the press, publishing, radio broadcasting,
the film industry, television, and other cultural undertakings'').
Regulation on Religious Affairs, issued 30 November 04, art. 2
(``Citizens enjoy freedom of religious belief.'').]
\2\ CECC, 2004 Annual Report, 5 October 04, sec. I. The 2004
recommendation stressed more specifically the objectives of dialogue:
``The future of Tibetans and their religion, language, and culture
depends on fair and equitable decisions about future policies that can
only be achieved through dialogue. The Dalai Lama is essential to such
a dialogue. The President and the Congress should continue to urge the
Chinese government to engage in substantive discussions with the Dalai
Lama or his representatives.'' CECC, 2005 Annual Report, 11 October 05,
sec. I. The 2005 recommendation called for direct contact between the
Dalai Lama and the Chinese leadership: ``To help the parties build on
visits and dialogue held in 2003, 2004, and 2005, the President and the
Congress should urge the Chinese government to move the current
dialogue toward deeper, substantive discussions with the Dalai Lama or
his representatives, and encourage direct contact between the Dalai
Lama and the Chinese leadership.''
\3\ CECC, 2006 Annual Report, 20 September 06, 17-18.
\4\ H. Con. Res. 196, ``Authorizing the use of the Rotunda and
grounds of the Capitol for a ceremony to award the Congressional Gold
Medal to Tenzin Gyatso, the Fourteenth Dalai Lama,'' 4 September 07.
According to the House Concurrent Resolution, the award ceremony will
take place in the Capitol Rotunda on October 17, and the Capitol
grounds will be available for a public event. The Resolution names the
International Campaign for Tibet as the sponsor of the public event.
\5\ S. 2784, Fourteenth Dalai Lama Congressional Gold Medal Act,
The Library of Congress (Online), enacted 27 September 06;
International Campaign for Tibet (ICT) (Online), ``US Congress Passes
Bill to Award the Dalai Lama the Congressional Gold Medal: Bill
Cosponsored by 387 Members of U.S. House and Senate,'' 13 September 06.
ICT notes that the Fourteenth Dalai Lama Congressional Gold Medal Act
was introduced as S.2782 by Senators Dianne Feinstein and Craig Thomas,
and as H.R.4562 by Representatives Ileana Ros-Lehtinen, and Tom Lantos.
\6\ Steven Marshall and Susette Cooke, Tibet Outside the TAR:
Control, Exploitation and Assimilation: Development With Chinese
Characteristics (Washington D.C.: self-published CD-ROM, 1997), Table
7. The 13 Tibetan autonomous areas include the provincial-level Tibet
Autonomous Region (TAR), with an area of 1.2 million square kilometers
(463,320 square miles), as well as 10 Tibetan autonomous prefectures
(TAP) and two Tibetan autonomous counties (TAC) located in Qinghai,
Gansu, Sichuan, and Yunnan provinces. Qinghai province: Yushu TAP,
197,791 square kilometers (76,367 square miles); Guoluo (Golog) TAP,
78,444 square kilometers (30,287 square miles); Huangnan (Malho) TAP,
17,901 square kilometers (6,912 square miles); Hainan (Tsolho) TAP,
41,634 square kilometers (16,075 square miles); Haibei (Tsojang) TAP,
52,000 square kilometers (20,077 square miles); Haixi (Tsonub) Mongol
and Tibetan AP, 325,787 square kilometers (125,786 square miles). Gansu
province: Gannan (Kanlho) TAP, 45,000 square kilometers (17,374 square
miles); Tianzhu (Pari) TAC, 7,150 square kilometers (2,761 square
miles). Sichuan province: Ganzi (Kardze) TAP, 153,870 square kilometers
(59,409 square miles); Aba (Ngaba) Tibetan and Qiang AP, 86,639 square
kilometers (33,451 square miles); Muli (Mili) TAC, 11,413 square
kilometers (4,407 square miles). Yunnan province: Diqing (Dechen) TAP,
23,870 square kilometers (9,216 square miles). The Table provides areas
in square kilometers; conversion to square miles uses the formula
provided on the Web site of the U.S. Geological Survey (USGS): one
square kilometer = 0.3861 square mile. Based on data in the Table, the
10 TAPs and 2 TACs have a total area of approximately 1.04 million
square kilometers (402,000 square miles). The TAR and the Tibetan
autonomous prefectures and counties are contiguous and total
approximately 2.24 million square kilometers (865,000 square miles).
Xining city and Haidong prefecture, located in Qinghai province, have a
total area of 20,919 square kilometers (8,077 square miles) and are not
Tibetan autonomous areas.
\7\ Office of the Special Coordinator for Tibetan Issues, U.S.
Department of State, Report on Tibet Negotiations, 11 July 2007. The
Report is mandated by Section 611 of the Foreign Relations
Authorization Act, 2003.
\8\ Ibid.
\9\ Ibid.
\10\ Ibid.
\11\ Ibid. President Bush raised the issue of dialogue and direct
discussion between the Dalai Lama and Chinese officials when he met
President Hu in Washington in April 2006 and at the Asia-Pacific
Economic Cooperation Forum (APEC) in Vietnam the following November.
\12\ Ibid.
\13\ Ibid.
\14\ Paula Dobriansky was sworn in as Under Secretary of State for
Global Affairs on May 1, 2001. She was appointed Special Coordinator
for Tibetan Issues on May 17, 2001. She was appointed CECC Commissioner
in July 2001.
\15\ U.S. Department of State, Report on Tibet Negotiations.
\16\ Ibid.
\17\ ``Dalai Lama's Envoy: China Talks Deal With Substantive
Issues, Encounter Obstacle,'' CECC China Human Rights and Rule of Law
Update, April 2006, 3. The envoys visited China on September 9-27,
2002; May 25-June 8, 2003; September 12-29, 2004, and February 15-23,
2006. The fourth round of dialogue took place at the Chinese Embassy in
Bern, Switzerland on June 30-July 1, 2005.
\18\ Tibetan Government-in-Exile, ``Statement by Special Envoy of
His Holiness the Dalai Lama, Lodi Gyari, head of the Tibetan
delegation, following the sixth round of discussions with the Chinese
leadership,'' 7 July 07.
\19\ Word count of main text of Special Envoy statements following
sessions of dialogue: 2002, 770 words; 2003, 831 words; 2004, 454
words; 2005, 514 words; 2006, 303 words; 2007, 235 words.
\20\ International Campaign for Tibet (Online), ``ICT's Mission,''
last visited 15 July 07. In addition to serving as the Dalai Lama's
Special Envoy, Lodi Gyari is the Executive Chairman of the
International Campaign for Tibet (ICT). International Campaign for
Tibet (Online), ``ICT's Mission,'' last visited 15 July 07. ICT
``promotes self-determination for the Tibetan people through
negotiations between the Chinese government and the Dalai Lama.''
\21\ Tibetan Government-in-Exile, ``Statement by Special Envoy of
His Holiness the Dalai Lama, Lodi Gyari, head of the Tibetan
delegation, following the sixth round of discussions with the Chinese
leadership,'' 7 July 07.
\22\ Ibid.
\23\ Ibid.
\24\ ``Communist Party Adds Tibetan Affairs Bureau to the United
Front Work Department,'' CECC China Human Rights and Rule of Law
Update, October 2006, 8.
\25\ Ibid.
\26\ Ibid.
\27\ Ibid.
\28\ Tibetan Government-in-Exile (Online), ``Statement by Special
Envoy Lodi Gyari, Head of the Delegation Sent by His Holiness the Dalai
Lama to China,'' 11 June 03; Tibetan Government-in-Exile (Online),
``Statement by Special Envoy Kasur Lodi Gyari, Head of the Delegation
to China,'' 13 October 04.
\29\ ``Forum on Tibetan Cultural Preservation Upholds Party
Development Policy,'' CECC China Human Rights and Rule of Law Update,
November 2006, 12-13.
\30\ ``Talks With Chinese Officials in Switzerland Were Concrete
and Substantive, Says Tibetan Special Envoy,'' CECC China Human Rights
and Rule of Law Update, August 2005, 2-3.
\31\ ``Forum on Tibetan Cultural Preservation Upholds Party
Development Policy,'' CECC China Human Rights and Rule of Law Update,
November 2006, 12-13.
\32\ Ibid.
\33\ The Dalai Lama has made a statement on the anniversary of the
1959 Lhasa uprising on March 10 of every year that he has lived in
exile, beginning in 1960.
\34\ Tibetan Government-in-Exile (Online),''The Statement of His
Holiness the Dalai Lama on the Forty-Eighth Anniversary of the Tibetan
National Uprising Day,'' 10 March 2007. PRC Constitution, Preamble.
Samdhong Rinpoche's remark refers to a statement in the Preamble, ``In
the struggle to safeguard the unity of the nationalities, it is
necessary to combat big-nation chauvinism, mainly Han chauvinism, and
also necessary to combat local-national chauvinism.'' China's system of
ethnic autonomy is an attempt to resolve the divergent interests of a
dominant and potentially overbearing ethnic group (Han) and
nationalistic ethnic minorities (such as Tibetans, Uighurs, and
Mongols).
\35\ Testimony of Lodi G. Gyari, Special Envoy of His Holiness the
Dalai Lama, at the House Foreign Affairs Committee Hearing on the
Status of Tibet Negotiations, U.S. House of Representatives Committee
on Foreign Affairs (Online), 13 March 07.
\36\ Tibetan Government-in-Exile (Online), ``We Are Not Asking for
`High' or `Low' Degree of Autonomy: Kalon Tripa,'' 12 May 07.
\37\ Tibetan Government-in-Exile (Online), ``The Middle-Way
Approach: A Framework for Resolving the Issue of Tibet,'' last visited
13 July 07. The explanation of the Middle-Way Approach lists eight
``important components.'' The first three are: (1) Without seeking
independence for Tibet, the Central Tibetan Administration strives for
the creation of a political entity comprising the three traditional
provinces of Tibet; (2) Such an entity should enjoy a status of genuine
national regional autonomy; (3) This autonomy should be governed by the
popularly-elected legislature and executive through a democratic
process.
\38\ Tibetan Government-in-Exile (Online), ``Tibet at a Glance,''
last visited 14 July 07. ``Land Size: 2.5 million square kilometers,
which includes U-Tsang, Kham and Amdo provinces [the three traditional
provinces of Tibet]. `Tibet Autonomous Region,' consisting of U-Tsang
and a small portion of Kham, consists of 1.2 million square
kilometers.'' A People's Daily Web page states that the area of China
is 9.6 million square kilometers.
\39\ ``Dalai Lama's Special Envoy Describes Status of Discussions
With Chinese Government,'' CECC China Human Rights and Rule of Law
Update, December 2006, 6-7.
\40\ ``Seeking Unity Through Equality: The Current Status of
Discussions Between His Holiness the Dalai Lama and the Government of
the People's Republic of China,'' Prepared Statement of Lodi Gyaltsen
Gyari, Special Envoy of His Holiness the Dalai Lama, The Brookings
Institution (Online), 14 November 2006.
\41\ Question and Answer Session with Lodi Gyaltsen Gyari, Special
Envoy of His Holiness the Dalai Lama, on the Current State of
Discussions Between the Dalai Lama and the Government of the People's
Republic of China, The Brookings Institution (Online), 14 November
2006.
\42\ Tibetan Government-in-Exile (Online), ``Statement of His
Holiness the Dalai Lama on the Forty-Seventh Anniversary of the Tibetan
National Uprising Day.''
\43\ Tibetan Government-in-Exile (Online), ``We Are Not Asking for
`High' or `Low' Degree of Autonomy: Kalon Tripa,'' 12 May 07.
\44\ International Campaign for Tibet, Tibet at a Glance. The ICT
Web page describes Tibet as an ``occupied'' country of 2.5 million
square kilometers (965,000 square miles) with Lhasa as its capital.
\45\ ``Dalai Lama's Special Envoy Describes Status of Discussions
With Chinese Government,'' CECC China Human Rights and Rule of Law
Update, December 2006, 6-7. ``Seeking Unity Through Equality,''
Prepared Statement of Lodi Gyaltsen Gyari.
\46\ ``Seeking Unity Through Equality,'' Prepared Statement of Lodi
Gyaltsen Gyari.
\47\ ``Dalai Lama's Special Envoy Describes Status of Discussions
With Chinese Government,'' CECC China Human Rights and Rule of Law
Update, December 2006, 6-7. Steven Marshall and Susette Cooke, Tibet
Outside the TAR, Table 7. The total area of the TAR and Tibetan
autonomous prefectures and counties is approximately 2.24 million
square kilometers (865,000 square miles). The area that Tibetans claim
as Tibet, 2.5 million square kilometers, is approximately 965,000
square miles.
\48\ Tabulation on Nationalities of 2000 Population Census of
China, Department of Population, Social, Science and Technology
Statistics, National Bureau of Statistics, and Department of Economic
Development, State Ethnic Affairs Commission (Beijing: Ethnic
Publishing House, September 2003), Table 10-4. The only prefectural-
level areas of Qinghai province that are not a Tibetan autonomous
prefecture or a Mongol and Tibetan autonomous prefecture are Xining
municipality and Haidong prefecture. According to official 2000 census
information, the total population of Xining and Haidong was about 3.24
million. Of that population, about 224,000 persons (6.9 percent) were
Tibetans.
\49\ The territory that Tibetans claim outside the existing Tibetan
autonomous areas contain parts of autonomous prefectures or counties
named to reflect ethnic groups including the Hui, Salar, and Tu in
Qinghai province; the Kazak, Mongol, Yugur, Hui, Dongxiang, and Bao'an
in Gansu province; the Yi in Sichuan province; the Naxi, Lisu, Nu, Bai,
and Pumi in Yunnan province; and, according to some maps, the Mongol in
Xinjiang. Substantial Han Chinese populations are also included, some
established for centuries.
\50\ Tabulation on Nationalities of 2000 Population Census of
China, Table 10-4. According to official data, no county-level area
outside the existing Tibetan autonomous areas has a Tibetan population
higher than 25 percent. Three counties outside the existing Tibetan
autonomous areas have a Tibetan population between 20 and 25 percent:
Xunhua Salar Autonomous County (24.7 percent), Hualong Hui Autonomous
County (21.5 percent), and Su'nan Yugur Autonomous County (24.4
percent) in Gansu province. One county outside the existing Tibetan
autonomous areas has a Tibetan population between 10 and 20 percent:
Huangyuan county (10.4 percent) in Qinghai province. Six counties
outside the existing Tibetan autonomous areas have a Tibetan population
between 5 and 10 percent: Huangzhong county (8.5 percent), Datong Hui
Autonomous County (6.6 percent), Ledu county (6.4 percent), and Huzhu
Tu Autonomous County (6.0 percent) in Qinghai province; and Shimian
county (9.8 percent) and Baoxian county (8.7 percent) in Sichuan
province.
\51\ Ibid. Substantial areas and populations of the territory that
Tibetans claim outside the existing Tibetan autonomous areas contain
Tibetan populations of 5 percent or less, including part or all of:
Xining municipality in Qinghai province; Jiuquan, Zhangye, and Wuwei
municipalities, and Linxia Hui Autonomous Prefecture in Gansu province;
Liangshan Yi Autonomous Prefecture in Sichuan province; and Lijiang
Naxi Autonomous Prefecture and Nujiang Lisu Autonomous Prefecture in
Yunnan province.
\52\ ``Seeking Unity Through Equality,'' Prepared Statement of Lodi
Gyaltsen Gyari.
\53\ Ibid.
\54\ Ministry of Foreign Affairs (Online), ``The Tibetan ethnic
minority,'' 15 November 00. ``In 1929, the Kuomintang government set up
a commission for Mongolian and Tibetan affairs in Nanjing and
established Qinghai province. In 1939, Xikang province was set up.''
(The article also shows that the Guomindang established Qinghai
province in 1929. Today, Qinghai is occupied principally by Tibetan
autonomous prefectures established by the PRC government.) People's
Daily (Online), ``Panda's Hometown Lures Tourists, Investors With
Wonders,'' 23 August 01. ``Ya'an boasts a history of over 2,000 years
and was once the capital of Xikang province which was abolished in
1955.''
\55\ International Campaign for Tibet, Tibet at a Glance. A map on
the Web site shows the Tibetan boundary as a solid line. Portions of
Qinghai, Gansu, Sichuan, and Yunnan provinces that are inside the Tibet
boundary are shown as dashed lines. Tibetan Government-in-Exile
(Online), Map of Tibet, last visited 14 July 07. The relatively
straight contour between the western and northern tips of the Tibet map
shows that a portion of Bayinguoleng Mongol Autonomous Prefecture is
included within Tibet.
\56\ PRC Constitution, art. 62(12). The National People's Congress
exercises the function and power to ``approve the establishment of
provinces, autonomous regions, and municipalities directly under the
Central Government.'' PRC Constitution, art. 89(15). The State Council
exercises the function and power to ``approve the geographic division
of provinces, autonomous regions, and municipalities directly under the
Central Government, and to approve the establishment and geographic
division of autonomous prefectures, counties, autonomous counties, and
cities.''
\57\ PRC Regional Ethnic Autonomy Law [hereinafter REAL], enacted
31 May 84, amended 28 February 01.
\58\ REAL, Preamble.
\59\ Tibetan Government-in-Exile (Online),'' The Statement of His
Holiness the Dalai Lama on the Forty-Eighth Anniversary of the Tibetan
National Uprising Day.
\60\ PRC Constitution, art. 31. ``The state may establish special
administrative regions when necessary. The systems to be instituted in
special administrative regions shall be prescribed by law enacted by
the National People's Congress in the light of the specific
conditions.''
\61\ Ibid.
\62\ Tibetan Government-in-Exile, ``We are not asking for `high' or
`low' degree of autonomy.''
\63\ REAL, Preamble.
\64\ The REAL (amended 28 February 01) and State Council
Regulations on the Implementation of the REAL (issued 11 May 05)
promote increased emphasis on economic development, and reinforce the
government's Great Western Development program. The Regulation on
Religious Affairs (RRA) (issued 30 November 04) elaborates the state's
legal control over the publication and dissemination of religious
literature, the identification of high-ranking reincarnated Tibetan
Buddhist lamas, state supervision over who teaches and studies
religious subjects. The TAR Implementing Measures for the Regulation on
Religious Affairs (issued 19 September 06) are more detailed and
intrusive than the RRA in establishing control over the function of
Tibetan Buddhism. The TAR Regulations on the Study, Use, and
Development of the Tibetan Language (revised May 22, 2002) drop the
requirement that state government agencies use both Mandarin and
Tibetan, and instead allow them to decide to use either one.
\65\ Question and Answer Session with Lodi Gyaltsen Gyari, The
Brookings Institution. Responding to a question about the ``unification
of all ethnic Tibetans,'' Gyari said that China accepts that ``the
Tibetan people are one people,'' so the Tibetans are asking that they
``be able to live within one single administration.'' Gyari asserted,
``I am utterly convinced from every point of view, what we ask is
legitimate, what we ask is according to the Chinese Constitution,
Chinese laws.'' Tibetan Government-in-Exile, ``We are not asking for
`high' or `low' degree of autonomy.'' Samdhong Rinpoche told a
conference, ``Our two desires are that the constitutional provisions of
national regional autonomy must be implemented . . ., [so that] all
Tibetans must be administered by a single autonomous self-government. .
. . We are simply asking for the sincere implementation of the national
regional autonomy provisions enshrined in the Constitution of the
People's Republic of China, which is further spelt out in the autonomy
law.''
\66\ REAL, art. 12. ``Autonomous areas may be established where one
or more minority nationalities live in concentrated communities, in the
light of local conditions such as the relationship among the various
nationalities and the level of economic development, and with due
consideration for historical background.''
\67\ PRC Constitution, art. 62(12), 89(15).
\68\ Ibid., art. 116. ``People's congresses of national autonomous
areas have the power to enact autonomy regulations and specific
regulations in the light of the political, economic and cultural
characteristics of the nationality or nationalities in the areas
concerned. . . .'' REAL, art. 19. ``The people's congresses of ethnic
autonomous areas shall have the power to enact self-governing
regulations and separate regulations in the light of the political,
economic, and cultural characteristics of the nationality or
nationalities in the areas concerned. . . .''
\69\ PRC Legislation Law, enacted 15 March 00, art. 9. ``In the
event that no national law has been enacted in respect of a matter
enumerated in Article 8 hereof, the [NPC] and the Standing Committee
thereof have the power to make a decision to enable the State Council
to enact administrative regulations in respect of part of the matters
concerned for the time being, except where the matter relates to crime
and criminal sanctions, the deprivation of a citizen's political
rights, compulsory measure and penalty restricting the personal freedom
of a citizen, and the judicial system.''
\70\ Ibid., art. 66.
\71\ REAL, art. 20. ``If a resolution, decision, order, or
instruction of a state agency at a higher level does not suit the
actual conditions in an ethnic autonomous area, an autonomous agency of
the area may report for the approval of that higher level state agency
to either implement it with certain alterations or cease implementing
it altogether. . . .''
\72\ PRC Legislation Law, art. 66. ``. . . An autonomous decree or
special decree may vary the provisions of a law or administrative
regulation, provided that any such variance may not violate the basic
principles thereof, and no variance is allowed in respect of any
provision of the Constitution or the Law on Ethnic Area Autonomy and
provisions of any other law or administrative regulations which are
dedicated to matters concerning ethnic autonomous areas.''
\73\ PRC Constitution, art. 31.
\74\ State Council Information Office, ``White Paper on Regional
Ethnic Autonomy in Tibet,'' Xinhua (Online), 23 May 04. ``The situation
in Tibet is entirely different from that in Hong Kong and Macao. The
Hong Kong and Macao issue was a product of imperialist aggression
against China; it was an issue of China's resumption of exercise of its
sovereignty. Since ancient times Tibet has been an inseparable part of
Chinese territory, where the Central Government has always exercised
effective sovereign jurisdiction over the region.'' ``Yedor: On the
`Middle Way' of the Dalai Lama,'' China Tibet Information Center
(Online), 18 July 06. ``It is known to all that the ``one country, two
systems'' refers to the fact that the mainland follows the socialist
system while Hong Kong and Macao continue to follow the capitalist
system they had followed before. However, no capitalist system existed
in Tibetan history; . . .''
\75\ CECC, Annual Report 2002, 12 October 02, Sec. 1.
\76\ CECC, Annual Report 2004, 5 October 04, Sec. 1.
\77\ CECC, Annual Report 2006, 20 September 06, Sec. 1.
\78\ Zhang Qingli, ``Grasp the Two Major Affairs of Development and
Stability, Promote the Building of a Harmonious Tibet,'' Seeking Truth,
16 January 07 (Open Source Center, 18 January 07); Tenzing Sonam,
``Roadblock on the Middle Path,'' Himal Magazine (Online), December
2006. ``Why, then, when the Tibetans are officially doing everything
possible to create what the Kashag's Prime Minister, Samdhong Rinpoche,
calls a `conducive atmosphere,' are the Chinese stepping up their
campaign to vilify the Dalai Lama, and denouncing his overtures to find
accommodation?''
\79\ ``China Vows to Tighten Security in Tibet,'' Reuters,
reprinted in Phayul (Online), 21 May 07. TAR Party Secretary Zhang
Qingli told a group of Party members, ``From beginning to end . . . we
must deepen patriotic education at temples, comprehensively expose and
denounce the Dalai Lama clique's political reactionary nature and
religious hypocrisy;'' ``Tibetan Abbot Forced To Step Down,'' Radio
Free Asia (Online), 30 May 07. A Tibetan Buddhist abbot in Gande
county, Guolou Tibetan Autonomous Prefecture, Qinghai province, said
that officials were stepping up patriotic education in the county.
Bureau of Democracy, Human Rights, and Labor, U.S. Department of State,
Country Reports on Human Rights Practices--2006, China (includes Tibet,
Hong Kong, and Macau), 8 March 06. ``Numerous credible sources reported
that political education sessions intensified in Lhasa beginning in
April 2005.''
\80\ Tibet Autonomous Region Implementing Measures for the
``Regulation on Religious Affairs'' [hereinafter TAR 2006 Measures],
issued by the Standing Committee of the Tibet Autonomous Region
People's Government on September 19, 2006. The TAR 2006 Measures became
effective on January 1, 2007.
\81\ Ibid. The Measures contain 56 articles (6,221 Chinese
characters). Tibet Autonomous Region Temporary Measures on the
Management of Religious Affairs [hereinafter TAR 1991 Measures], issued
by the Standing Committee of the Tibet Autonomous Region People's
Government on December 9, 1991. The measures contain 30 articles (3,355
Chinese characters).
\82\ State Administration for Religious Affairs, Measures on the
Management of the Reincarnation of Living Buddhas in Tibetan Buddhism
[Zangchuan fojiao huofo zhuanshi guanli banfa] [hereinafter MMR],
issued 13 July 07.
\83\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, International Religious Freedom Report--2006, China (includes
Tibet, Hong Kong, and Macau), 15 September 06. ``Although authorities
permitted many traditional religious practices and public
manifestations of belief, they promptly and forcibly suppressed any
activities, which they viewed as vehicles for political dissent. This
included religious activities that officials perceived as supporting
the Dalai Lama or Tibetan independence.''
\84\ CECC Staff Interviews. The Kargyu, Sakya, and Nyingma
traditions, especially in Tibetan areas outside the TAR, may experience
less interference from authorities.
\85\ ``Zhang Qingli becomes new Party chief of Tibet,'' Xinhua
(Online), 29 May 07; ``Xinjiang Communist Party Official Promoted to
Acting Secretary of the Tibet Autonomous Region,'' CECC China Human
Rights and Rule of Law Update, January 2006, 19. The Party Central
Committee appointed Zhang Qingli to the post of acting TAR Party
Secretary in November 2005, and Secretary on May 29, 2006. Zhang
previously served in the Xinjiang Uighur Autonomous Region as Deputy
Party Secretary and commander of the Xinjiang Production and
Construction Corps (XPCC).
\86\ ``TAR Party Secretary Accuses the Dalai Lama of Being a `False
Religious Leader,' '' CECC China Human Rights and Rule of Law Update,
September 2006, 14.
\87\ The Party and government use the term ``Western hostile
forces'' to include governments, NGOs, advocacy groups, media
organizations, and individuals who criticize Chinese policies, actions,
and records with respect to issues such as human rights, and who work
to encourage or facilitate change in such areas.
\88\ Zhang Qingli, ``Grasp the Two Major Affairs of Development and
Stability.''
\89\ ``China Vows to Tighten Security in Tibet,'' Reuters.
\90\ ``Monk Dies Following Dispute With Patriotic Education
Instructors,'' CECC China Human Rights and Rule of Law Update, December
2005, 10. ``A Reader for Advocating Science and Technology and Doing
Away With Superstitions'' (translated by International Campaign for
Tibet in When the Sky Fell to Earth: The New Crackdown on Buddhism in
Tibet, 2004). The manual asks, ``Why do we conduct patriotic education
among monks and nuns in the monasteries?,'' and provides the answer:
``Conducting patriotic education among the monks and nuns in the
monasteries is an important aspect of strengthening the management of
religious affairs by the government. . . . Dalai's bloc has never
stopped penetrating and engaging in splittist activities in our region
under the support of international antagonistic forces. . . . The monks
and nuns should be religious professionals who love the country, love
religion, obey the discipline, and abide by the law.''
\91\ ``Lhasa Area Monks and Nuns Face a New Round of `Patriotic
Education','' CECC China Human Rights and Rule of Law Update, November
2005, 10; Tibetan Centre for Human Rights and Democracy (Online),
``China Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions,'' 13 October 05.
\92\ International Campaign for Tibet (Online), ``The Communist
Party as Living Buddha: The Crisis Facing Tibetan Religion Under
Chinese Control,'' 26 April 2007, 5. Tibetan Centre for Human Rights
and Democracy (Online), Annual Report 2006, March 2006, 39, 41-42.
\93\ ``Tibetan Abbot Forced To Step Down,'' Radio Free Asia. RFA
reports that officials forced an abbot of a Tibetan Buddhist monastery
in Gande (Gade) county, Guoluo (Golog) Tibetan Autonomous Prefecture to
step down in May after he refused to sign a statement denouncing the
Dalai Lama. An official of the county Religious Affairs Bureau
allegedly acknowledged that authorities were stepping up patriotic
education.
\94\ ``Zhang Qingli Delivers Major Address at Opening of Party
Conference in Tibet [Xizang quanqu dangyuan lingdao ganbu dahui zhaokai
Zhang Qingli fabiao zhongyao jianghua],'' Tibet Daily, reprinted in
Xinhua (Online), 16 May 06; ``TAR Party Secretary Calls for Tighter
Control of Tibetan Monasteries, Nunneries,'' China Human Rights and
Rule of Law Update, July 2006, 9.
\95\ International Campaign for Tibet, ``The Communist Party as
Living Buddha,'' 37. ICT cites, Xinhua, ``Zhang Qingli: Ensure Tibet's
Leap-over Style Development and Long Term Order and Security [Zhang
Qingli: Quebao Xizang kuayueshi fazhan he changzhi jiuan], 18 May 06.
\96\ RRA, art. 17: ``Venues for religious activities shall set up
management organizations and practice democratic management. Members of
the management organizations of venues for religious activities shall
be selected through democratic consultations and reported as a matter
of record to the registration management organs for the venues.'' (In a
Tibetan monastery or nunnery, a DMC is generally made up of monks or
nuns selected from among themselves. Candidates are sometimes screened
by local officials, according to some reports.)
\97\ International Campaign for Tibet, ``The Communist Party as
Living Buddha,'' 39.
\98\ Ibid.
\99\ Tibet Autonomous Region Temporary Measures on the Management
of Religious Affairs [hereinafter TAR 1991 Measures], issued by the
Standing Committee of the Tibet Autonomous Region People's Government
on December 9, 1991, art. 15. ``The Buddhist Association is a mass
organization of personages from religious circles and religious
believers, and a bridge for the Party and government to unite and
educate personages from religious circles and the believing masses. Its
effectiveness shall be vigorously brought into play under the
administrative leadership of the government's religious affairs
department.''
\100\ Regulation on Religious Affairs (RRA) [Zongjiao shiwu
tiaoli], issued 30 November 04.
\101\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability.''
\102\ ``Regional National Autonomy Is the Only Road for Tibet's
Development, Part One,'' Xinhua, 24 April 07 (Open Source Center, 17
May 07). (Official TAR reports provided the figures of more than 1,700
monasteries and nunneries and 46,000 monks and nuns as early as 1996.)
\103\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability.''
\104\ Tibet Autonomous Region Implementing Measures for the
``Regulation on Religious Affairs'' [hereinafter TAR 2006 Measures],
issued by the Standing Committee of the Tibet Autonomous Region
People's Government on September 19, 2006. The measures became
effective on January 1, 2007.
\105\ RRA, translated on the Web site of China Elections and
Governance.
\106\ TAR 2006 Measures. Of the Measures 56 articles: 7 articles
lay out the ``general principles'' for religious activity; 21 articles
stipulate responsibilities and regulations for ``religious
organizations'' (provincial-level, government-controlled Buddhist
associations) and ``venues for religious activities'' (e.g. monasteries
and nunneries), as well as on activity by monasteries and nunneries; 17
articles regulate religious activity by ``religious personnel'' (e.g.
monks and nuns); 10 articles stipulate punitive measures against
persons or entities that violate the measures; 1 article repeals the
1991 Temporary Measures on the Management of Religious Affairs.
\107\ State Council Information Office, ``White Paper on Regional
Ethnic Autonomy in Tibet,'' Xinhua (Online), 23 May 04. ``At present,
there are over 1,700 venues for Tibetan Buddhist activities, with some
46,000 resident monks and nuns; four mosques and about 3,000 Muslims;
and one Catholic church and over 700 believers in the [Tibet Autonomous
Region].''
\108\ TAR 1991 Measures, issued by the Standing Committee of the
Tibet Autonomous Region People's Government on December 9, 1991.
\109\ TAR 2006 Measures, arts. 36-40.
\110\ RRA, art. 27.
\111\ TAR 1991 Measures, art. 23.
\112\ Ministry of Foreign Affairs (Online), ``Did Tibet Become an
Independent Country After the Revolution of 1911?,'' 15 November 00.
``In 1792 the Twenty-Nine Article Imperial Ordinance was issued. It
stipulated in explicit terms for the reincarnation of the Living
Buddhas in Tibet as well as the administrative, military, and foreign
affairs.'' (The edict sought to impose Qing control over religious,
administrative, military, fiscal, commercial, and foreign affairs. The
edict demanded that an Amban, the ``Resident Official'' representing
the imperial court, would have equal status to the Dalai and Panchen
Lamas, and function as the supervisor of the Tibetan administration.)
\113\ Although the TAR 2006 Measures are government-issued, the
measures depend in part on Democratic Management Committees (DMCs) and
Buddhist associations for effective application. The Party maintains
regular contact with both organizations, and requires each of them to
study and implement Party policies on religion.
\114\ TAR 2006 Measures, art. 36.
\115\ Ibid., art. 37.
\116\ Ibid., art. 38.
\117\ Ibid., art. 39.
\118\ Ibid., art. 39.
\119\ The RRA contains no precedent for restriction on travel by
religious professionals such as Tibetan Buddhist monks and nuns. The
TAR 1991 Measures contained no restrictions on intra-provincial travel
by monks and nuns. The Commission does not have on file detailed
information about local rules or practices that may have exceeded the
level of restriction provided for by the TAR 1991 Measures or the RRA.
\120\ TAR 2006 Measures, arts. 41-44.
\121\ ``Practicing religion'' is distinct from studying religion,
which is more strictly regulated. Practicing religion may include
activities such as conducting extended periods of prayer and ritual
offering, or going on pilgrimage. Monks and nuns sometimes conduct
extended periods of prayer and offering while living in seclusion, or
in remote places in a rudimentary shelter.
\122\ TAR 2006 Measures, art. 41. The requirement to report for the
record to the local government's religious affairs bureau could provide
government officials a pretext to discourage, interfere in, or prevent
monks and nuns from engaging in traditional Buddhist practices,
especially living in seclusion or in remote places.
\123\ Ibid., art. 43.
\124\ TAR 1991 Measures, art. 9.
\125\ TAR 2006 Measures, arts. 46-55. The articles use the term
``disqualify,'' not ``expel.'' ``Disqualify'' here means to disqualify
someone from legally practicing religion as a religious professional.
Revoking registration as a ``religious professional'' terminates a
person's legal status as a monk or nun, and the authorization to reside
at a monastery or nunnery in order to study and practice religion.
\126\ Ibid., art. 34. The RRA and TAR 1991 Measures do not
explicitly state such a ban.
\127\ Ibid., art. 53.
\128\ Padmasambhava, or Guru Rinpoche, is regarded as one of the
greatest teachers of Tibetan Buddhism and a central figure in the
oldest tradition of Tibetan Buddhism, the Nyingma.
\129\ Gyurme Dorje, Tibet Handbook, (Bath, England: Trade and
Travel Handbooks, 1996), 235. Samye Monastery was probably constructed
between 775 and 779, although other historical accounts provide
different dates.
\130\ International Campaign for Tibet (Online), ``Demolition of
Giant Buddha Statue at Tibetan Monastery Confirmed by China,'' 14 June
07.
\131\ Tibetan Centre for Human Rights and Democracy (Online),
``Colossal Guru Rinpoche's Statue Demolished in Tibet: China's New
Religious Affairs Regulations for `TAR' Entered Into Force,'' 4 June
07.
\132\ Ibid.
\133\ RRA, art. 24, ``No organizations or individuals other than
religious bodies, monasteries, temples, mosques, and churches may build
large-size outdoor religious statues.'' TAR 2006 Measures, art. 13,
``No group or individual outside of religious organizations and venues
for religious activities may build religious structures such as a
large-scale open-air religious statue, or mani lhakhang [prayer (wheel)
temple].'' (The TAR 1991 Measures do not contain a precedent for
Article 13 of the TAR 2006 Measures.)
\134\ RRA, art. 44, ``Where, in violation of the provisions of
these Regulations, anyone builds a large outdoor religious statue, the
religious affairs department shall order it to discontinue the
construction and to demolish the statue in a specified time limit; . .
.'' TAR 2006 Measures, art. 48, ``Where, in violation of provisions in
Article 13 of these measures, a religious structure such as an outdoor
religious statue, stupa, or mani lhakhang [prayer (wheel) temple] is
built without authorization outside of a venue for religious activity,
the people's government religious affairs department at the county
level or above orders redress, suspension of construction, and
demolition within a specified time limit, in accordance with relevant
laws and regulations.''
\135\ ``Samye Moves Open-air Statue of Buddha,'' China Tibet
Information Center (Online), 9 June 07. ``Samye Monastery made bold to
erect a copper statue of Buddha Padmasambhava in the open air donated
by a related enterprise's principal, which disobeyed the Law of the
People's Republic of China on Protection of Cultural Relics and the
Notice of Illegally Building Open Statue of Buddha jointly issued by
the State Administration for Religious Affairs of People's Republic of
China, Ministry of Construction of the People's Republic of China, and
China National Tourism Administration.''
\136\ Ibid.
\137\ International Campaign for Tibet, ``Demolition of Giant
Buddha Statue at Tibetan Monastery''
\138\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability.''
\139\ Tibet Information Network (TIN), Background Briefing Papers:
Documents and Statements from Tibet 1996-1997, 1998, 45. A November 4,
1996, article in the Tibet Daily said that the number of monasteries
and nunneries in the TAR (1,787) was too high and that the Party
planned in 1986 that only 229 monasteries would be reopened in the TAR.
The article said that the number of monks and nuns (46,000 in early
1996) was high and created a negative impact on social and economic
development. (The TIN summary of the article did not include any
reference to a Party statement explicitly calling for a reduction in
the number of monasteries, nunneries, monks, and nuns.)
\140\ ``Reincarnation of Tibetan Living Buddhas Must Get Government
Approval,'' Xinhua, reprinted in People's Daily (Online), 3 August 07.
\141\ State Administration for Religious Affairs, Measures on the
Management of the Reincarnation of Living Buddhas in Tibetan Buddhism
[Zangchuan fojiao huofo zhuanshi guanli banfa] [hereinafter MMR],
issued 13 July 07.
\142\ State Council Information Office, ``White Paper on Regional
Ethnic Autonomy in Tibet,'' Xinhua (Online), 23 May 04. There are
approximately 1,700 monasteries and nunneries and 46,000 monks and nuns
in the TAR. CECC Staff Interviews, September 2003. According to a
Chinese official, there are 655 Tibetan Buddhist monasteries and
nunneries and approximately 21,000 monks and nuns in Qinghai province.
An official in Huangnan (Malho) TAP in eastern Qinghai province
reported that there are 83 monasteries and nunneries, 3,656 monks and
nuns, and 116 Tibetan Buddhist reincarnations in the prefecture. (Based
on the Huangnan figures, the ratio of the number of monasteries and
nunneries in Huangnan to the number of reincarnations is about 1.4 to
1. The ratio of monks and nuns to reincarnations in Huangnan is
approximately 32 to 1.) CECC Staff Interview, April 2004. According to
a Chinese official, in Gansu province there are 276 Tibetan Buddhist
monasteries and nunneries, approximately 10,000 monks and nuns, and 144
Tibetan Buddhist reincarnated teachers. (Based on these figures, the
ratio of the number of monasteries and nunneries in Gansu to the number
of reincarnations is approximately 1.9 to 1. The ratio of monks and
nuns to reincarnations in Gansu is approximately 69 to 1.) Web site of
the Sichuan Province Party Committee Policy Research Office, ``Improve
Capacity to Resolve Minority Issues, Make Efforts to Build a Harmonious
Ganzi,'' 10 August 05. There are 515 Tibetan Buddhist monasteries and
nunneries and 37,916 monks and nuns in Ganzi (Kardze) Tibetan
Autonomous Prefecture (TAP). (The data in these sources total 3,146
Tibetan Buddhist monasteries and nunneries and approximately 115,000
monks and nuns, and do not include monasteries and nunneries in Aba
(Ngaba) Tibetan and Qiang Autonomous Prefecture and Muli (Mili) Tibetan
Autonomous County in Sichuan province, and Diqing (Dechen) TAP in
Yunnan province.)
\143\ Based on an estimated 3,300 Tibetan monasteries and
nunneries, and extrapolating an estimate by applying the ratio of
monasteries to reincarnations in Gansu province (1.9 to 1) and Huangnan
TAP (1.4 to 1), an estimated total number of reincarnations could be
more than 1,700 (based on the Gansu ratio) and more than 2,300 (based
on the Huangnan ratio). The Gansu and Huangnan data samples are
relatively small, however, and may not provide a reliable estimate. The
Commission has very little information on the number of reincarnated
teachers in the TAR; the proportion there may be lower than in some of
the Tibetan areas of Sichuan and Qinghai provinces.
\144\ ``Reincarnation of Tibetan Living Buddhas Must Get Government
Approval,'' Xinhua, reprinted in People's Daily (Online), 3 August 07.
\145\ MMR, art. 3.
\146\ Ibid., art. 4.
\147\ Xining city, the capital of Qinghai province, has four urban
districts (Chengdong, Chengxi, Chengzhong, and Chengbei), but there are
no Tibetan Buddhist monasteries within the city districts.
\148\ The Commission does not have official information on the
number of reincarnated Tibetan Buddhist teachers at Drepung and Sera
Monasteries, but each monastery has several according to unofficial
reports.
\149\ In comparison to the MMR, only Article 27 of the RRA
addresses reincarnation (requiring government guidance and compliance
with ``historical conventions''). Articles 36-40 of the TAR 2006
Measures address reincarnation, but the measures apply only within the
TAR and do not apply as many detailed requirements as the MMR. Only
Article 23 of the TAR 1991 Measures refers to reincarnation (banning
the involvement of ``foreign forces'' in confirming reincarnations).
\150\ MMR, arts. 3-4.
\151\ Ibid., arts. 5-7.
\152\ Ibid., arts. 4, 7-9
\153\ Ibid., art. 10.
\154\ Ibid., art. 12.
\155\ Ibid., art. 11.
\156\ ` ``Our Own Come First' in the Reincarnation of Living
Buddhas,'' Singtao Daily, 23 August 07 (Open Source Center, 13
September 07). The report does not state the date when the forum took
place.
\157\ ` ``Ibid. ``The meeting stressed that the Tibetan areas must
strictly carry out the Management Measures for the Reincarnation of
`Living Buddhas' in Tibetan Buddhism, that `our own comes first' in the
reincarnation of living Buddhas, and that we must be on guard against
interference by the Dalai Lama clique in exile abroad with the support
of international hostile forces.''
\158\ Ibid.
\159\ The figures for 2004 and 2005, reported by the CECC 2006
Annual Report based on data available in the PPD as of August 2006,
have not changed.
\160\ The Commission's Political Prisoner Database (PPD) is
available Online at http://ppd.cecc.gov.
\161\ The CECC 2005 Annual Report referred to the period 2002-2004
saying, ``About two-thirds of the Tibetan political prisoners detained
from 2002 onward are in Sichuan province, according to the PPD. Half of
them are monks.''
\162\ U.S. Commission on International Religious Freedom, ``Annual
Report of the Commission on International Religious Freedom,'' 2 May
07, 123. ``The Chinese government acknowledges that more than 100
Tibetan Buddhist monks and nuns are being held in prison.'' The report
does not provide a date for the Chinese statement or provide additional
detail.
\163\ Tibetan Centre for Human Rights and Democracy, ``China
Recommences `Patriotic Education' Campaign in Tibet's Monastic
Institutions.'' For example, TCHRD reported that as many as eight Sera
monastery monks reportedly detained the previous July remained
unidentified. As of September 2007, additional information about the
outcome of their detentions is not available.
\164\ Tibetan Centre for Human Rights and Democracy (Online),
``Human Rights Update, October 2006. For example, TCHRD reported that
Sera Monastery monk Thubten Samten ``disappeared'' in May 2006 after he
behaved in a defiant manner to members of a patriotic education work
team when they warned him not to display prohibited material in his
room. As of September 2007, information about whether or not police
detained him is not available.
\165\ See, for example, International Campaign for Tibet, ``The
Communist Party as Living Buddha: The Crisis Facing Tibetan Religion
Under Chinese Control,'' 26 April 2007, 29, 43, 55, 75.
\166\ U.S. Department of State, International Religious Freedom
Report 2006, China. ``The Government continued to refuse to allow
access to Gendun Choekyi Nyima, . . . and his whereabouts were unknown.
. . . All requests from the international community for access to the
boy to confirm his well-being have been refused.'' ``UN Committee
Recommends Independent Expert to Visit Boy Named As Panchen Lama,''
CECC Virtual Academy (Online), 26 January 06.
\167\ UN Commission on Human Rights (Online), ``Summary of Cases
Transmitted to Governments and Replies Received, 27 March 06, 24-25.
The Special Rapporteur on Freedom of Religion or Belief sent a request
to the Chinese government for information about Gedun Choekyi Nyima on
June 9, 2005. The Chinese government provided a response on September
7, 2005.
\168\ ``It Is Both Illegal and Invalid for the Dalai Lama to
Universally Identify the Reincarnated Soul Boy of the Panchen Lama,''
People's Daily, 1 December 95 (Open Source Center, 1 December 95).
\169\ See CECC Annual Report 2006, Section V(d)--Freedom of
Religion, for additional information about the Panchen Lama and
Gyaltsen Norbu.
\170\ Tibet Information Network, Background Briefing Papers:
Documents and Statements from Tibet 1996-1997, 1998, 45. A November 4,
1996, article in the Tibet Daily said that there were 1,787 monasteries
and nunneries in the TAR, and 46,000 monks and nuns. Tabulation on
Nationalities of 2000 Population Census of China, Table 10-4. The
Tibetan population of the TAR was 2,427,168 in 2000. (If the government
enumeration of monks and nuns is accurate, then 1.9 percent of the TAR
Tibetan population are Tibetan Buddhist monks and nuns, and 98 percent
are living in secular society.)
\171\ The Gelug tradition, established in the late 14th century, is
the largest of several traditions of Tibetan Buddhism that are
currently practiced. The Dalai Lama and Panchen Lama are the most
revered spiritual teachers of the Gelug.
\172\ CECC Staff Interviews.
\173\ International Campaign for Tibet (Online), ``Tibetans Banned
From Marking Traditional Buddhist Anniversary,'' 9 January 07. ``All
members of the Communist Party, government employees, retired cadres
and staff, cadres and workers of business and enterprise work units and
people's collectives, and the broad masses of young students are not
permitted to participate in or observe celebrations of the Gaden
Ngachoe Festival.'' (Gaden Ngachoe observes the passing in 1419 of
Tsongkhapa, the founder of the Gelug tradition of Tibetan Buddhism, of
which the Dalai Lama and Panchen Lama are the most revered spiritual
teachers. The observance takes place on the 25th day of the 11th lunar
month on the Tibetan calendar, December 15 in 2006.)
\174\ Saga Dawa falls on the 15th day (the full moon) of the 4th
month of the Tibetan lunar calendar. The day commemorates both the
enlightenment and passing away of the Buddha. Saga Dawa fell on June 11
in 2006, and on May 31 in 2007.
\175\ Tibetan Centre for Human Rights and Democracy (Online),
``China intensifies prohibition of religious activities in Tibet during
the holy month of Saka Dawa,'' 19 May 07.
\176\ CECC Staff Interviews.
\177\ U.S. Department of State, Country Reports on Human Rights
Practices--2006, China. ``Government officials reportedly ordered
Tibetans working for the government to refrain from going to temples
during the Saga Dawa festival in May or risk losing their jobs.''
\178\ ``Dalai Lama's Birthday celebrated by Tibetans across
Tibet,'' Phayul (Online), 5 July 07.
\179\ ``Work Report of the Tibet Autonomous Regional Government,''
Tibet Daily, 29 January 03 (Open Source Center, 16 June 03). Legchog
(Lieque), then-Chairman of the TAR government, said, ``We carried out
the work to confiscate and ban reactionary propaganda materials,
cracked down on illegal exit to and entry from other countries, and
checked ``Trunglha Yarsol'' [activities to mark the birthday of the
Dalai Lama] and other illegal activities.''
\180\ U.S. Department of State, Country Reports on Human Rights
Practices--2006, China. The report refers to the Dalai Lama's birthday
in July 2006, saying, ``The prohibition on celebrating the Dalai Lama's
birthday on July 6 continued.''
\181\ ``Dalai Lama's Birthday celebrated by Tibetans across
Tibet,'' Phayul.
\182\ ``Grand Western Development Is a Vivacious Chapter in
Implementation of `Three Represents','' People's Daily, 20 October 02
(Open Source Center, 20 October 02). ``Since 1999, Comrade Jiang Zemin
has frequently presided over meetings to specifically study the issue
of implementing the strategy of great western development and has
issued a series of important directives. In early 2000, the State
Council founded a leading group for the development of the western
region and presented the strategy of great western development.'' State
Council, ``Some Opinions of the State Council on Continuing to Press
Ahead with the Development of the Western Region,'' Xinhua, 22 March 04
(Open Source Center, 29 March 04). ``Practice provides ample evidence
that the strategic decision by the CPC Central Committee and the State
Council to develop the west is entirely correct and that all policy
measures and key tasks pertaining to the development of the western
region are entirely consistent with reality.'' (The statement shows
that the State Council considers implementation of GWD to be a matter
of policy.)
\183\ CECC, 2002 Annual Report, 40.
\184\ ``Qinghai-Tibet Railway Project to Start on June 29,'' Xinhua
(Online), 17 June 01. Railway construction was scheduled to begin on
June 29, 2001. Completion would take six years.
\185\ CECC, 2002 Annual Report, 40.
\186\ CECC, 2003 Annual Report, 78.
\187\ Ibid., 81.
\188\ CECC, 2004 Annual Report, 97.
\189\ Ibid., 97-98.
\190\ CECC, 2005 Annual Report, 108
\191\ Ibid., 109.
\192\ CECC, 2006 Annual Report, 166.
\193\ Ibid., 168.
\194\ CECC, 2002 Annual Report, 41. ``The Commission recommends
that the Congress appropriate increased funding for NGOs to develop
programs that improve the health, education, and economic conditions of
ethnic Tibetans.'' CECC, 2003 Annual Report, 4. ``The Congress should
increase funding for U.S. nongovernmental organizations (Ngos) to
develop programs that improve the health, education, and economic
conditions of ethnic Tibetans living in Tibetan areas of China, and
create direct, sustainable benefits for Tibetans without encouraging an
influx of non-Tibetans into these areas.
\195\ Li Dezhu, ``Large-Scale Development of Western China and
China's Nationality Problem,'' Seeking Truth, 15 June 00 (Open Source
Center, 15 June 00). Li Dezhu (Li Dek Su) addresses the social and
ethnic implications of the program that Jiang Zemin launched in 1999.
(The campaign is also known as Develop the West, and as Xibu da kaifa.)
\196\ ``Zhang Qingli Addresses `First Plenum' of Tibet Military
District Party Committee,'' Tibet Daily, 20 April 07 (Open Source
Center, 8 May 07).
\197\ ``Hu Jintao,'' China Tibet Information Center (Online),
visited 2 August 07.
\198\ ``Hu Jintao Takes Part in Deliberations by Delegation of
Tibet Deputies,'' Xinhua, 5 March 07 (Open Source Center), 5 March 07.
Hu met with TAR delegates including Zhang Qingli and Jampa Phuntsog.
\199\ PRC Regional Ethnic Autonomy Law [hereinafter REAL], enacted
31 May 84, amended 28 February 01.
\200\ See, for example, REAL, amended 28 February 01, arts. 54-72.
\201\ PRC Constitution, art. 4. ``The people of all nationalities
have the freedom to use and develop their own spoken and written
languages, and to preserve or reform their own ways and customs.''
\202\ REAL, enacted 31 May 84, art. 65.
\203\ REAL, amended 28 February 01, art. 71.
\204\ ``Education, Employment Top Concerns for Tibetan Youth,''
Radio Free Asia (Online), 13 July 07; ``Tibetans Stage Rare Public
Protest in Lhasa,'' Radio Free Asia (Online), 8 November 06; Tibetan
Government-in-Exile, ``Abuse in Job Allocation in Tibet Drives Students
to Streets,'' 6 December 06. ``Tibetan University Graduates Stage
Public Protest, Allege Job Discrimination,'' CECC Virtual Academy
(Online), 15 December 06.
\205\ REAL, enacted 31 May 84, art. 65.
\206\ CECC, 2006 Annual Report, 169, citing Ma Rong and Tanzen
Lhundup, ``Temporary Migrants in Lhasa in 2005,'' Section IV(4.8),
Table 14. Based on a survey published by Chinese academics Ma Rong and
Tanzen Lhundup, the rate of illiteracy among Tibetan migrants (32.3
percent) was almost 10 times higher than for Han migrants (3.3
percent), and Han migrants were better prepared to secure jobs that
require skills learned in junior or senior middle school. Of the
migrants surveyed, Han reached junior or senior middle school at about
twice the rate of Tibetans: 53.7 percent of Han compared to 26 percent
of Tibetans reached junior middle school, and 19.4 percent of Han
compared to 9 percent of Tibetans reached senior middle school.
\207\ REAL, amended 28 February 01, art. 71.
\208\ Provisions of the State Council for Implementing the Law on
Regional Ethnic Autonomy of the People's Republic of China [hereinafter
REAL Implementing Provisions], issued 11 May 05.
\209\ ``PRC Western Development Official on 4 Key Aspects of New
Preferential Policies,'' China Daily, 23 October 00 (Open Source
Center, 23 October 00). ``Wang Chunzheng, deputy director of the State
Council's Western Development Office, said the policies focus on four
key aspects; increasing capital input, improving the investment
environment, attracting skilled personnel and boosting the development
of science and technology. This is the first time that China has
summarized the measures to be carried out in its `Go-West' campaign, .
. .''
\210\ REAL Implementing Measures, art. 29. ``The State encourages
and supports talents of all categories and classes to develop and
pioneer in ethnic autonomous areas and local government shall offer
preferential and convenient working and living conditions to them.
Dependents and children of cadres of Han nationality or ethnic
minorities who go to work in remote, tough, and frigid ethnic
autonomous areas shall enjoy special treatment in employment and
schooling.''
\211\ REAL, amended 28 February 01, art. 22.
\212\ Li Dezhu, ``Large-Scale Development of Western China and
China's Nationality Problem.''
\213\ ``Law on Western Development in Pipeline,'' China Daily
(Online), 14 March 06.
\214\ TAR Regulations on the Study, Use and Development of the
Tibetan Language [hereinafter TAR Language Regulations], adopted July
9, 1987, by the Fifth Session of the Fourth TAR People's Congress, and
amended on May 22, 2002, by the Fifth Session of the Seventh TAR
People's Congress.
\215\ TAR Language Regulations, arts. 3-5. Mandarin and Tibetan
have ``equal effect'' when government agencies at any level in the TAR
are ``carrying out their duties.'' Government and regional enterprise
meetings may use either or both of the Tibetan and Mandarin languages.
Official documents must be issued in both languages. Citizens of ethnic
minorities are ``assured of the right to use their native language to
carry out legal proceedings.''
\216\ State Council Information Office, White Paper on New Progress
in Human Rights in the Tibet Autonomous Region, February 1998.
\217\ ``Report on the Outline of The 10th Five-Year Plan for
National Economic and Social Development by Chinese Premier Zhu Rongji
at the Opening of the Fourth Session of the Ninth National People's
Congress at the Great Hall of the People in Beijing,'' China Central
Television, 5 March 01 (Open Source Center, 5 March 01). Premier Zhu
said, ``During the Tenth Five-Year Plan period, we need to place
emphasis on key projects for a good beginning to the program. . . . We
must focus on a number of major projects of strategic significance,
such as the transmission of natural gas and electricity from western to
eastern regions and the planned Qinghai-Tibet Railway.'' State Council
Office of Western Region Development, ``Implementation Opinions
Concerning Policies and Measures Pertaining to the Development of the
Western Region,'' Xinhua, 20 December 01 (Open Source Center, 15
January 01). ``Resources must be concentrated on the construction of a
host of major projects that impact the development of the western
region as a whole, such as the ``West China-East China Gas Pipeline
Project,'' the ``West China-East China Power Transmission Project,''
the Qinghai-Tibet Railway, major state highways, and the proper
exploitation, conservation, and utilization of water resources.''
\218\ ``Figures Related to Qinghai-Tibet Railway on its One Year
Inauguration Anniversary,'' Xinhua (Online), 01 July 07.
\219\ Tibetan Center for Human Rights and Democracy (Online),
Annual Report 2006, 02 March 07, 5. ``The railway facilitating a huge
population influx, including Chinese settlers into Tibet, is bound to
inevitably change Tibet physically and culturally causing further
alienation of Tibetan identity.''
\220\ ``Education, Employment Top Concerns for Tibetan Youth,''
Radio Free Asia (Online), 13 July 2007. The report does not refer to
the Qinghai-Tibet railway or to an increase in the Chinese population.
It cites the increasing importance of having fluency in Mandarin
language in order to secure a good job. The other factor necessary for
finding a job is ``making the right connections.''
\221\ ``Tibet Official: Tibet Not to be ``Assimilated'' by Han Amid
Huge Investment,'' Xinhua (Online), 20 June 07. Jampa Phuntsog
supported his assertion by pointing out, ``The customs and traditional
festivals also remain unchanged after millions of tourists flock there
following the central government's large amount investment in the
region.''
\222\ ``Figures Related to Qinghai-Tibet Railway on its One Year
Inauguration Anniversary,'' Xinhua. ``A year after its inauguration,
the railway has transported 1.5 million passengers into Tibet, nearly
half of the total tourists arrivals in the region.''
\223\ ``Tibetan Railway to Transport 4,000 More Tourists Each
Day,'' China Tibet Information Center (Online), 22 May 06.
\224\ ``Tibet Expects 6 Million Tourist Arrivals by 2010,'' Xinhua,
reprinted in People's Daily (Online), 7 June 07. ``The region hosted
more than 2.5 million tourists last year, including 154,800 from
overseas.'' ``More Than 1.1 mln Tourists Visit Tibet in First Half
Year,'' Xinhua (Online), 11 July 07. ``More than 1.1 million tourists
traveled to Tibet in the first six months of the year, up 86.3 percent
over the same period last year, according to the local tourism
authority.''
\225\ ``Qinghai-Tibet Railway Transports 270,000 Passengers,''
Xinhua (Online), 14 September 06. ``About 40 percent of the passengers
were tourists, 30 percent business people and the rest students,
transient workers, traders and people visiting relatives in Tibet.''
\226\ ``Tibet Rail Construction Completed,'' China Daily (Online),
15 October 05. ``The line is expected to attract tourists, traders and
ethnic Chinese settlers who currently have to take either expensive
flights to Lhasa or bone-shaking bus rides.''
\227\ ``Callers Decry Impact of Tibet Railway,'' Radio Free Asia
(Online), 31 July 07.
\228\ Ibid.
\229\ Tibetan Centre for Human Rights and Democracy (Online),
``Tibetan People in Lhasa Reel Under Influx of Chinese Migrants,'' 3
August 07.
\230\ John K. Fairbank and Roderick MacFarquhar, eds., The
Cambridge History of China, Vol. 14, (New York: Cambridge University
Press, 1978), 368: ``Map 7. Railway Construction between 1949 and
1960.'' The railroads linking Jining, Hohhot, and Baotou in Inner
Mongolia were built before the PRC was founded.
\231\ State Council Information Office, ``White Paper on History
and Development of Xinjiang,'' Xinhua (Online), 26 May 03.
\232\ Tabulation on Nationalities of 2000 Population Census of
China, Department of Population, Social, Science and Technology
Statistics, National Bureau of Statistics, and Department of Economic
Development, State Ethnic Affairs Commission (Beijing: Ethnic
Publishing House, September 2003) Table 10-1: total population of the
Inner Mongolia Autonomous Region (IMAR) was 23,323,347, of whom
18,465,586 were Han; total population of the Xinjiang Uighur Autonomous
Region (XUAR) was 18,459,511, of whom 7,489,919 were Han; total
population of the Tibet Autonomous Region (TAR) was 2,616,329, of whom
158,570 were Han. Table 10-2: total Mongol population of the IMAR was
3,995,349. Table 10-5: total Uighur population of the XUAR was
8,345,622. Table 10-4: total Tibetan population of the TAR was
2,427,168. In the IMAR, the ratio of Han to Mongol was approximately
4.6:1; in the XUAR, the ratio of Han to Uighur was approximately 0.9:1;
in the TAR, the ratio of Han to Tibetan was approximately 0.07:1
\233\ Human Rights Watch (Online), ` ``No One Has the Liberty to
Refuse'--Tibetan Herders Forcibly Relocated in Gansu, Qinghai, Sichuan,
and the Tibet Autonomous Region,'' 11 June 07, 3. A Tibetan herder from
Maqin (Machen) county, Guoluo (Golog) Tibetan Autonomous Prefecture in
Qinghai province (November 2004): ``They are destroying our Tibetan
[herder] communities by not letting us live in our area and thus wiping
out our livelihood completely, making it difficult for us to survive in
this world, as we have been [herders] for generations. The Chinese are
not letting us carry on our occupation and forcing us to live in
Chinese-built towns, which will leave us with no livestock and we won't
be able to do any other work. . . .''
\234\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability, Promote the Building of a Harmonious Tibet,'' Seeking
Truth, 16 January 07 (Open Source Center, 18 January 07).
\235\ Human Rights Watch, ``No One Has the Liberty to Refuse,'' 3.
According to the report, the current program to settle nomadic herders
began in 2000 and has intensified in some areas since 2003.
\236\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability.''
\237\ Hu Jintao served as the TAR Communist Party Secretary from
1988-1992.
\238\ ``Hu Jintao Takes Part in Deliberations by Delegation of
Tibet Deputies,'' Xinhua, 5 March 07 (Open Source Center), 5 March 07.
\239\ Zhang Qingli, ``Grasp the Two Major Affairs of Development
and Stability.''
\240\ Ibid.
\241\ Ibid.
\242\ Human Rights Watch, ``No One Has the Liberty to Refuse,'' 3.
\243\ Ibid., 27.
\244\ Ibid., 17-18. ``The [policy] known as `revert pasture to
grassland' (tuimu huancao), was aimed at reversing degradation in
pastoral regions by imposing total, temporary, or seasonal bans on
grazing.''
\245\ Ibid., 45. ``Tibetan herders had pursued their way of life
for centuries without causing harm to the grassland; damage emerged
only after the imposition of policies such as collectivization.''
\246\ Ibid., 26-38.
\247\ Ibid. The report provides as examples art. 13 (``the right of
citizens to own lawfully earned income, savings, houses and other
lawful property''); art. 41 (``the right to criticize and make
suggestions,'' ``the right to make to relevant state organs complaints
and charges against, or exposures of, violation of the law or
dereliction of duty''); and art. 111 (``committees for people's
mediation,'' ``mediate civil disputes,'' ``convey residents' opinions
and demands and make suggestions to the people's government'').
\248\ Ibid., 57.
\249\ Ibid., 43.
\250\ ``More Nomadic Tibetan Herders Settle Down,'' Xinhua
(Online), 2 September 04; ``Government Campaign to Settle Tibetan
Nomads Moving Toward Completion,'' CECC China Human Rights and Rule of
Law Update, November 2005, 8.
\251\ Hamish McDonald, ``China Anxious To Prove Settled Life is
Better for Tibetan Nomads,'' Sydney Morning Herald (Online), 5 October
05; ``Government Campaign to Settle Tibetan Nomads Moving Toward
Completion,'' CECC China Human Rights and Rule of Law Update, November
2005, 8.
\252\ CECC Staff Interviews. The nomad families lived in Gannan
(Kanlho) TAP and Tianzhu (Pari) Tibetan Autonomous County. ``Government
Campaign to Settle Tibetan Nomads Moving Toward Completion,'' CECC
China Human Rights and Rule of Law Update, November 2005, 8.
\253\ ``Tibet Official Denies Forced Relocation of Herdsmen,''
Xinhua (Online), 20 June 07.
\254\ Ibid.
\255\ ``Zhang Qingli Addresses `First Plenum' of Tibet Military
District Party Committee,'' Tibet Daily, 20 April 07 (Open Source
Center, 8 May 07). ``250,000 Tibetans move into new houses in 2006,''
China Tibet Information Center (Online), 16 January 07. ``The ``Housing
Project'' which has been put into operation since 2006 aims at
improving locals' living condition and special attention has been put
into the house renovation, nomads' settle-down and moving because of
endemic [local health problems].''
\256\ ``Party Chief Brings Tibet New Homes,'' China Daily,
reprinted in People's Daily (Online), 15 March 07.
\257\ Ibid.
\258\ Tabulation on Nationalities of 2000 Population Census of
China. Table 1-2 shows 2,427,168 Tibetans in the TAR. Table 1-2c shows
that 2,058,011 of them are classified as ``rural.''
\259\ ``250,000 Tibetans move into new houses in 2006,'' China
Tibet Information Center (Online), 16 January 07. The article states,
``The ``Housing Project'' mostly reduces the cost of building houses
for local Tibetans as the subsidy varying from 10,000 yuan to 25,000
yuan has been offered to locals.''
\260\ ``Party Chief Brings Tibet New Homes,'' China Daily. ``It
would cost a rural Tibetan about 60,000 yuan to build a new house with
a floor space of about 200 square meters. Part of that money could come
from the autonomous region's government. Farmers can apply to receive
10,000 yuan; a herdsman can apply for 15,000 yuan; and a resident of a
poverty-stricken area can seek up to 25,000 yuan.''
\261\ Human Rights Watch (Online), ``Tibet: China Must End Rural
Reconstruction Campaign,'' 20 December 06.
\262\ Ibid. ``The cost of building a new house that meets the
government's standards is about US$5,000-US$6,000, though the
government lends households only about US$1,200 for construction
costs.''
\263\ ``Tibet Population Tops 2.8 Million,'' Xinhua (Online), 12
April 07. In the TAR in 2006, ``Farmers and herders posted a per capita
net annual income of 2,435 yuan, . . .'' ``China's GDP Grows 10.7% in
2006,'' China Daily, reprinted in Xinhua, 25 January 07. In 2006,
``Last year, rural residents in China had their per-capita income
increase by 10.2 percent to 3,587 yuan.'' (Based on these figures, the
average rural income in the TAR is 68 percent of the national average.)
\264\ Human Rights Watch, ``Tibet: China Must End Rural
Reconstruction Campaign.''
\265\ ``Tibet is Remade by Hand of Chinese Government by Force,''
McClatchy Newspapers, 29 July 07, reprinted in Phayul, 30 July 07.
\266\ Tibetan Centre for Human Rights and Democracy (Online), Human
Rights Update and Archives, ``The Rural Reconstruction Campaign in
Tibet Against the Will and Wishes of the Residents,'' April 2007.
\267\ Ibid.
\268\ Ibid.
\269\ See, e.g., the Universal Declaration of Human Rights, adopted
and proclaimed by General Assembly resolution 217 A (III) of 10
December 48, arts. 2, 7, 18, 19, 20; International Covenant on Civil
and Political Rights (ICCPR) adopted by General Assembly resolution
2200A (XXI) of 16 December 66, entry into force 23 March 76, arts.
2(1), 18, 19, 21, 22, 26, 27; International Covenant on Economic,
Social, and Cultural Rights (ICESCR) adopted by General Assembly
resolution 2200A (XXI) of 16 December 66, entry into force 3 January
76, art. 2(1, 2).
\270\ ``China to Monitor Ethnic Relations,'' Xinhua (Online), 29
March 07. The State Council announced a monitoring mechanism to deal
with ``emergencies resulting from ethnic issues.'' The mechanism aims
to ``clamp down on ethnic separatism so as to safeguard ethnic unity,
social stability, and national security.'' (The report provides an
update about government efforts to crack down on what it deems to be
ethno-nationalism.)
\271\ CECC, 2002 Annual Report, 38.
\272\ PRC Constitution, art. 54.
\273\ CECC, 2006 Annual Report, 170-71.
\274\ PRC Criminal Law, art. 103 (``organize, plot or carry out the
scheme of splitting the State or undermining unity of the country;''
``incites others to split the State or undermine unity of the
country''). The Commission's Political Prisoner Database does not
contain official charge information for many Tibetan cases, but
official Chinese media reports, as well as unofficial reports,
frequently provide information indicating a charge of splittism.
\275\ Ibid., art. 102-113.
\276\ Dui Hua Dialogue, ``Official Responses Reveal Many Sentence
Adjustments,'' Fall 2006, 6; ``Officials Extend Tibetan's Sentence for
Shouting Pro-Dalai Lama Slogans in Prison,'' CECC China Human Rights
and Rule of Law Update, December 2006, 17.
\277\ ``Chinese Court Has Jailed More Than 20 `Reactionary'
Tibetans Since 1996,'' Radio Free Asia (Online), 1 September 05;
``Court Official Acknowledges Imprisoning Tibetans Who Carried Dalai
Lama Photos Into the TAR,'' CECC China Human Rights and Rule of Law
Update, October 2005, 4-5.
\278\ ``Tibetan Jailed for Three Years,'' Radio Free Asia (Online),
9 March 07. (The RFA report did not provide information about the
charges against Penpa. Charges arising from possessing material
pertaining to the Dalai Lama are likely to be based on Article 103 of
the Criminal Law (inciting splittism).)
\279\ Ibid. (The RFA report did not provide information about the
charges against Penpa. Charges arising from possessing material
pertaining to the Dalai Lama are likely to be based on Article 103 of
the Criminal Law (inciting splittism).)
\280\ ``Three Tibetan Women Arrested in Lhasa,'' Phayul (Online),
15 June 06; ``Chinese Authorities Detain Five Tibetans for Alleged
Leafleting,'' Radio Free Asia (Online), 16 June 06; ``Tibetan Monk
Faces Eight Years for Separatism,'' Radio Free Asia (Online), 14 July
06; ``China Detains Teenage Girl for Writing Pro-Independence
Leaflets,'' Radio Free Asia (Online), 18 August 06; ``China Detains
Tibetan Abbot in Sichuan,'' Radio Free Asia (Online), 7 September 06;
``Another Tibetan Monk Arrested,'' Radio Free Asia (Online), 19
September 06;; ``Officials Detain Nine Tibetan Residents of Sichuan for
Links to Leaflets, Posters,'' CECC China Human Rights and Rule of Law
Update, November 2006, 3-4.
\281\ ``China Detains Teenage Girl for Writing Pro-Independence
Leaflets,'' Radio Free Asia.
\282\ ``Tibetan Monk Faces Eight Years for Separatism,'' Radio Free
Asia; ``Another Tibetan Monk Arrested,'' Radio Free Asia. Namkha
Gyaltsen was reportedly held in a detention center in Aba (Ngaba)
Tibetan and Qiang Autonomous Prefecture in Sichuan province, according
to RFA, and Lobsang Palden is presumed to be detained in Ganzi TAP.
\283\ ``China Detains Tibetan Abbot in Sichuan,'' Radio Free Asia.
\284\ Tibetan Centre for Human Rights and Democracy (Online),
``Monk Sentenced to Five Years Term for Distributing Political
Pamphlets,'' 14 November 06.
\285\ Dui Hua Dialogue, ``Summary of Recent Prisoner Responses,''
Spring 2007, 7.
\286\ Tibetan Centre for Human Rights and Democracy (Online),
``Former Tibetan Political Prisoner Served With 12 Years Prison Term,''
24 November 06. According to the TCHRD report, Sonam Gyalpo's family
appealed his case. No additional information is available about the
appeal.
\287\ Dui Hua Dialogue, ``Summary of Recent Prisoner Responses.''
\288\ TibetInfoNet (Online), ``Detentions Before 40th Anniversary
of TAR,'' 9 September 2005.
\289\ Ibid. Sonam Gyalpo was sentenced to three years' imprisonment
in TAR Prison (Drapchi) after he supported a protest march by monks in
Lhasa on September 27, 1987. He was held without charge for about one
year in the TAR Police Detention Center (Sitru) after July 1993, when
he returned to the TAR following an undocumented visit to India. Dui
Hua Dialogue, ``Summary of Recent Prisoner Responses.'' Dui Hua reports
that, according to the official Chinese response, Sonam Gyalpo was
sentenced to three years in prison in January 1989 for
``counterrevolutionary propaganda and incitement.'' (It is not clear
whether the three-year sentence began in 1987 or 1989.)
\290\ Dui Hua Dialogue, ``Summary of Recent Prisoner Responses.''
\291\ Ibid.
\292\ Tibetan Centre for Human Rights and Democracy (Online),
``Commentary Manuscript Lands Tibetan Youth Ten Years in Prison,'' 25
July 06.
\293\ Ibid.
\294\ International Campaign for Tibet (Online), ``Tibetan Scholar
Sentenced to Ten Years in Prison After Writing Book on History and
Culture,'' 8 August 06.
\295\ Dui Hua Dialogue, ``Summary of Recent Prisoner Responses,''
Spring 2007, 7.
\296\ International Campaign for Tibet, ``Tibetan Scholar Sentenced
to Ten Years.'' ICT obtained a copy of the letter.
\297\ ``Official Information Confirms Sentence for Tibetan Nun Who
Put Up Posters,'' CECC China Human Rights and Rule of Law Update,
December 2006, 17.
\298\ Free Tibet Campaign (Online), ``Four Monks and Nuns Arrested
for Displaying Dalai Lama Poster,'' 30 January 06; ``Gansu Court
Sentences Five Tibetan Monks and Nuns for Protest Posters,'' CECC China
Human Rights and Rule of Law Update, March 2006, 10-11; Radio Free Asia
(Online), ``China Arrests Tibetan Monks, Nuns for Dalai Lama Poster,''
20 December 05; Tibetan Centre for Human Rights and Democracy (Online),
``Arrest of Tibetan Monks for Postings Calling for Freedom in Tibet,''
15 July 05; ``Official Information Confirms Sentence for Tibetan Nun
Who Put Up Posters,'' CECC China Human Rights and Rule of Law Update,
December 2006, 17.
\299\ ``Five Tibetan Monks Jailed in Western China,'' Radio Free
Asia (Online), 13 February 05; Tibetan Centre for Human Rights and
Democracy, Human Rights Update February 2005, ``Monks Imprisoned for
Political Journal,'' April 2005.
\300\ International Campaign for Tibet (Online), ``Long Sentences
for Tibetan Political Prisoners for `Splittist' Offences,'' 12 May 06.
The ICT report contains a link to an ICT translation of the sentencing
document. ``Lhasa Court Commutes Life Sentence for Children's Home
Director to 19 Years,'' CECC China Human Rights and Rule of Law Update,
April 2006, 16. The sentencing document lists evidence against Bangri
Chogtrul that includes meeting the Dalai Lama, accepting a donation for
the home from a foundation in India, and a business relationship with a
Tibetan contractor who lowered a Chinese flag in Lhasa in 1999 and
tried to blow himself up. Jigme Tenzin Nyima acknowledged meeting the
Dalai Lama, accepting the contribution, and knowing the contractor, but
he denied the charges against him and rejected the court's portrayal of
events.
\301\ Dui Hua (Online), ``Dui Hua Executive Director Attends
Trials, Explores Judicial Openness, Clemency Granted to Tibetan Monk,
Labor Activist,'' 28 February 06.
\302\ ``The Execution of Lobsang Dondrub and the Case Against
Tenzin Deleg: The Law, the Courts, and the Debate on Legality,'' Topic
Paper of the Congressional-Executive Commission on China, February
2003; Human Rights Watch (Online), Trials of a Tibetan Monk: The Case
of Tenzin Delek, 9 February 04.
\303\ Ibid.
\304\ ``Tibetan Monk Involved in Terrorist Bombing Still in
Prison,'' Xinhua (Online), 31 December 04.
\305\ Tibetan Centre for Human Rights and Democracy (Online), ``A
Tibetan Arrested in Lithang for Political Demonstration,'' 2 August 07.
\306\ International Campaign for Tibet (Online), ``Security
Crackdown Feared Following Public Appeal by Tibetan for Return of Dalai
Lama,'' 2 August 07; ``Scores of Tibetans Detained for Protesting at
Festival,'' Radio Free Asia (Online), 2 August 07.
\307\ International Campaign for Tibet (Online), ``Official
Petition on Dalai Lama May Have Provoked Lithang Action,'' 10 August
07. According to an ICT source: ``'It seems that most of the local
population knew about this petition being circulated by officials, and
it caused an increase in tension and anxiety. People in this area
revere His Holiness the Dalai Lama, and Runggye Adak's action could
have been a response to this provocative move by officials. Local
people may have somehow wanted to demonstrate that this petition is a
lie, and did not represent the wishes of Tibetans in Lithang.''
\308\ ``Villager Detained for Inciting Separation,'' Xinhua,
reprinted in China Daily (Online), 3 August 07.
\309\ International Campaign for Tibet (Online), ``New Images
Confirm Dispersal of Tibetans by Armed Police After Lithang Protest:
Runggye Adak's Relatives Taken Into Custody,'' 24 August 07.
\310\ Tibetan Centre for Human Rights and Democracy (Online), ``The
Chinese Authorities Transfer Adruk Lopoe to an Unknown Location, Arrest
Another Tibetan Nomad,'' 28 August 07; International Campaign for
Tibet, ``New Images Confirm Dispersal of Tibetans by Armed Police After
Lithang Protest.'' Tibetan Centre for Human Rights and Democracy
(Online), ``China Arrest Three Nephews of Ronggye A'drak in Lithang,''
22 August 07.
\311\ Tibetan Centre for Human Rights and Democracy (Online), ``The
Chinese Authorities Transfer Adruk Lopoe to an Unknown Location, Arrest
Another Tibetan Nomad,'' 28 August 07.
\312\ Human Rights in China (Online), ``Tibetan Schoolboys Detained
as Crackdown Worsens,'' 20 September 07.
\313\ Ibid. The students allegedly wrote slogans on walls of the
village police station, and elsewhere in the village.
\314\ Ibid. According to the report, authorities held the students
at a village police station from September 7-9 and allowed families to
access the children.
\315\ It is commonplace for multiple Tibetans in the same community
to have identical names. Generally, Tibetan names do not include a
family name.
\316\ The number of known cases of current Tibetan political
detention or imprisonment reported in CECC Annual Reports: 2002 Annual
Report, 39, ``less than 200,'' based on a 2002 report by the Tibet
Information Network (TIN); 2003 Annual Report, 79, ``approximately
150,'' based on a March 2003 TIN report; 2004 Annual Report, 101, ``145
prisoners,'' based on a February 2004 TIN report; 2005 Annual Report,
112, ``120 current cases,'' based on CECC Political Prisoner Database
information current in June 2005; 2006 Annual Report, 171, ``103 known
cases of current Tibetan political detention or imprisonment,'' based
on PPD information current in August 2006.
\317\ Dui Hua Dialogue, ``Official Responses Reveal Many Sentence
Adjustments.''
\318\ United Nations Commission on Human Rights, Working Group on
Arbitrary Detention, Decisions adopted by the Working Group on
Arbitrary Detention, Decision No. 65/1993, 5 October 94.
Notes to Section VI--Developments in Hong Kong
\1\ United States-Hong Kong Policy Act of 1992, Public Law No. 102-
383, enacted 4 April 90; The Basic Law of the Hong Kong Special
Administrative Region of the People's Republic of China, enacted 4
April 90; Joint Declaration of the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the People's
Republic of China on the Question of Hong Kong, adopted 19 December 84.
\2\ CECC, 2005 Annual Report, 11 October 05, 115-116.
\3\ CECC, 2004 Annual Report, 5 October 04, 104-6. Decision of the
Standing Committee of the National People's Congress on Issues Relating
to the Methods for Selecting the Chief Executive of the Hong Kong
Special Administrative Region in the Year 2007 and for Forming the
Legislative Council of the Hong Kong Special Administrative Region in
the Year 2008, 26 April 2004.
\4\ The Basic Law of the Hong Kong Special Administrative Region of
the PRC, arts. 45 and 68.
\5\ Bureau of East Asian and Pacific Affairs, U.S. Department of
State, Hong Kong Policy Act Report, 30 June 07.
\6\ Stephen Lam, Secretary for Constitutional and Mainland Affairs,
Government of the Hong Kong Special Administrative Region, ``Welcome
Message,'' reprinted by Constitutional and Mainland Affairs Bureau
(Online) (last visited October 8, 2007).
\7\ Ibid.
\8\ Ibid.
\9\ Government of the Hong Kong Special Administrative Region
(Online), Green Paper on Constitutional Development, July 07.
\10\ Hong Kong Economic and Trade Offices in the United States
(Online), ``Constitutional Reform Green Paper Unveiled,'' 11 July 07.
\11\ Scarlett Chiang and Diana Lee, ``Paper spells out options for
reform,'' The Standard (Online), 12 July 07.
\12\ Government of the Hong Kong Special Administrative Region
(Online), ``Government's response to procession: opinions expressed
during consultation period will form basis for assessment,'' 7 October
07.
\13\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Reports on Human Rights Practices--2006, China
(includes Tibet, Hong Kong, and Macau), 6 March 07.
\14\ As the Commission has noted previously, ``A March 2006 report
by the UN Human Rights Committee, which is responsible for reviewing
compliance with the International Covenant on Civil and Political
Rights (ICCPR), expressed concern about the absence of universal
suffrage in Hong Kong, as well as with the implementation of the
procedure for interpretation of the Basic Law, a reference, in part, to
the April 2004 NPCSC decision to prohibit universal suffrage in the
2007 Chief Executive and 2008 Legislative Council elections. The report
questioned the HKSAR government's compliance with Article 25 of the
ICCPR in both situations. Article 25 states that every citizen should
have the right and the opportunity, without unreasonable restrictions,
to participate in public affairs, either by himself or through a
directly elected representative, and to express his political will
through universal suffrage. The report concluded that, `(a)ll necessary
measures should be taken whereby the Legislative Council is elected by
universal and equal suffrage. It should be ensured that all
interpretations of the Basic Law, including on electoral and public
affairs issues, are in compliance with the Covenant.' See CECC, 2006
Annual Report, 20 October 06, 176-177. See also International Covenant
on Civil and Political Rights, adopted by General Assembly resolution
2200A (XXI) of 16 December 66, entry into force 23 March 76: See also
UN Human Rights Committee, Concluding Observations of the Human Rights
Committee--Hong Kong Special Administrative Region (HKSAR), 30 March
06; The Sino-British Joint Declaration states that the provisions of
the ICCPR still remain in force in Hong Kong after the territory's
reversion to the PRC. See Joint Declaration of the Government of the
United Kingdom of Great Britain and Northern Ireland and the Government
of the People's Republic of China on the Question of Hong Kong, Section
XIII.
\15\ U.S. Department of State, Country Reports on Human Rights
Practices--2006, China.